FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dworak & Watts (No 3) [2024] FedCFamC1F 168
File number: SYC 6424 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 19 March 2024 Catchwords: FAMILY LAW– COSTS – Costs of the Independent Children’s Lawyer following completion of final hearing and delivery of final judgment – Where the parties oppose the application by the Independent Children’s Lawyer – Where the final orders were made substantially in accordance with the orders proposed by the Independent Children’s Lawyer – Where the parties conduct in the proceedings caused delay – Orders made for the parties to pay the costs of the Independent Children’s Lawyer in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 68LA, s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432
CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 76
Collins and Collins (1985) FLC 91-603; [1985] FamCA 15
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Dworak & Watts (No 2) [2024] FedCFamC1F 13
Hitch & Hitch (2012) 47 Fam LR 603; [2012] FamCAFC 124
Nardini & Legal Aid NSW [2019] FamCA 340
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Stoian & Fiening (Costs) [2014] FamCA 944
Division: Division 1 First Instance Number of paragraphs: 23 Date of last submissions: 8 February 2024 Date of hearing: Determined on the papers Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Emanuel Refenes Solicitor Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Wollongong Family Law ORDERS
SYC 6424 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DWORAK
Applicant
AND: MR WATTS
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1.Within ninety (90) days of the date of these orders, the mother is to pay to Legal Aid NSW the sum of $11,989.29, being her share of the costs of the Independent Children’s Lawyer, unless she is granted a waiver in relation to those costs by Legal Aid NSW.
2.Within ninety (90) days of the date of these orders, the father is to pay to Legal Aid NSW the sum of $11,989.29, being his share of the costs of the Independent Children’s Lawyer, unless he is granted a waiver in relation to those costs by Legal Aid NSW.
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).
Section 121 of the Family Law Act 1975 (Cth) makes…
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- Dworak & Watts (No 3) [2024] FedCFamC1F 168
- Case
- [2024] FedCFamC1F 168
- Decision Date
CaseChat Overview and Summary
The court considered the statutory provisions under the Family Law Act 1975 (Cth) which guide the consideration of costs for an ICL. It highlighted that the role of the ICL is invaluable and that it is in the public interest for the best interests of the children to be represented. The court noted that while neither party provided financial statements, both had submitted that they had incurred significant legal costs due to the extensive litigation. The court concluded that the ICL's role in the proceedings was crucial and that it was appropriate for the parties to contribute to the ICL's costs, as the court generally favours such an order when the ICL is unfunded.
The court ordered that both Ms Dworak and Mr Watts were to pay their respective shares of the ICL's costs, amounting to $11,989.29 each, within ninety days from the date of the orders. This decision was made considering the substantial assistance provided by the ICL and the importance of the children's representation in such proceedings. The court's order was subject to review for any minor typographical or grammatical errors or for any variation in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Orders
Orders of the court
SYC 6424 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS DWORAK
Applicant
AND:
MR WATTS
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1. Within ninety (90) days of the date of these orders, the mother is to pay to Legal Aid NSW the sum of $11,989.29, being her share of the costs of the Independent Children’s Lawyer, unless she is granted a waiver in relation to those costs by Legal Aid NSW.
2. Within ninety (90) days of the date of these orders, the father is to pay to Legal Aid NSW the sum of $11,989.29, being his share of the costs of the Independent Children’s Lawyer, unless he is granted a waiver in relation to those costs by Legal Aid NSW.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
In Nardini & Legal Aid NSW [2019] FamCA 340, I determined that public interest considerations are highly relevant in considering an application for costs by the ICL, stating:22.In terms of s 117(2A)(g), it is relevant that the role played by the ICL in parenting proceedings, including in this matter, is invaluable. The role of the ICL was summarised in the context of an application for costs in proceedings before the High Court of Australia in CDJ v VAJ (No 2) (1998) 197 CLR 172. Specifically, at [11], Kirby J said:The children’s representative has a duty to “act in an independent and unfettered way in the best interests of the child”. This duty carries over to an appeal. The interests of the children and their welfare is of concern to the public. Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this court. [References omitted].23.I accept that it is in the public interest for the best interests of children to be represented in proceedings before this Court and that the Court invariably receives substantial assistance, in that regard, from ICLs appointed in parenting proceedings. Such assistance was undoubtedly provided by the ICL in this case.24. Also relevant to these proceedings is s 117(5) of the Act, which provides: (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.25.Accordingly, it is my view that the ICL should be presumed to be unfunded and, having regard to authority, in those circumstances, the Court is generally inclined to order litigants to contribute to the ICL’s costs: Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma [2013] FamCA 566. CONSIDERATION It is convenient to address each of the matters set out in s 117(2A) of the Act to the extent that I have considered them relevant to the determination that I have made to award costs in favour of the ICL.The parties’ respective financial circumstances In terms of s 117(2A)(a) of the Act, the Court is required to consider the financial circumstances of the parties and s 117(4)(b) of the Act requires for the Court to consider whether a party would “suffer financial hardship if the party had to bear a proportion of the costs of the [ICL]”. Both parties submit that they have incurred significant legal costs due to the extensive and protracted litigation.[1] The ICL submits that there is no financial statement filed by either of the parties that would indicate whether they would suffer financial hardship in paying their respective shares of the ICL’s costs.[2] I accept the submission of the ICL that there is no evidence before me that enables me to accurately determine the respective financial positions of the parties.[1] Written submissions of the mother filed 8 February 2024, page 1; Written submissions of the father filed 6 February 2024, paragraphs 5–6. [2] Written submissions of the Independent Children’s Lawyer filed 7 February 2024, paragraphs 18 and 20.