Dworak & Watts (No 3)
[2024] FedCFamC1F 168
•19 March 2024
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 it an offence, except in very limited circumstances, to publish 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 Dworak & Watts has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
Following the completion of a final hearing in respect to parenting, the Independent Children’s Lawyer (“the ICL”) makes an application for the parties to equally share in the costs of the ICL, being the sum of $11,989.29 each, unless they are granted a waiver by Legal Aid NSW.
In the proceedings, the parties sought competing orders concerning their child, X, who was aged 12 at the time of judgment delivery. The proceedings were heard over a period of 10 days, being 24–28 July 2023, 14–15 August 2023, 21 August 2023, 21 September 2023 and 24 November 2023.
Final judgment was delivered on 25 January 2024: Dworak & Watts (No 2) [2024] FedCFamC1F 13 (“Dworak & Watts (No 2)”). I found that the respondent father, Mr Watts (“the father”) was more capable to meet the child’s educational and developmental needs and made the difficult decision to make orders to change the residence from that of the mother to the father. This was significantly influenced by the assistance of the recommendations of the Single Expert and the final orders sought by the ICL.
My orders provided for the parties to file written submissions in respect to the question of whether they should share in the costs of the Independent Children’s Lawyer. They were to be filed within 14 days of the date of the orders. The applicant mother, Ms Dworak (“the mother”) filed her written submissions on 8 February 2024, the father filed his written submissions on 6 February 2024 and the ICL filed their written submissions on 7 February 2024.
The mother and father both oppose the orders sought by the ICL.
The assistance of the ICL was significant in this matter and I have determined that they should be compensated for providing their assistance to the Court in accordance with their relevant statutory obligations.
RELEVANT LEGAL PRINCIPLES
The general rule, as set out in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is that each party to the proceedings shall bear his or her own costs: Collins and Collins (1985) FLC 91-603 at 79,877. This is, however, subject to s 117(2) of the Act which provides that, if the Court is satisfied that there are circumstances justifying it, the Court may make an order as to costs as it considers just. Beyond the “essential preliminary” consideration of those matters set out in s 117(2A) of the Act, there is no “additional or special onus” on the applicant for the Court to make an order for costs: Penfold v Penfold (1980) 144 CLR 311 at 315.
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.
In any event, in Cross & Beaumont (2008) 39 Fam LR 389 at [60], the Full Court held that financial impecuniosity to pay a costs order is not a barrier to the making of such an order where there are circumstances that justify the court in doing so.
Additionally, in terms of hardship, I note that the ICL’s proposed order reflects that each party may apply directly to Legal Aid NSW to be granted a waiver in respect of paying the ICL’s costs.
Receipt of assistance by way of legal aid by either party
Neither party is in receipt of legal aid: s 117(2A)(c) of the Act.
Conduct of the parties in relation to the proceedings
This section of the Act (s 117(2A)(c)) is focused on the conduct of the parties as litigants, rather than as separated parents generally: Hitch & Hitch (2012) 47 Fam LR 603.
The final hearing in this matter was more protracted than was necessary due to the conduct of both parties. As I noted in my judgment, Dworak & Watts (No 2):
62.On Monday, 24 July 2023, the final hearing was due to commence but due to the late filing of the mother’s affidavit material on 23 July 2023, the matter was stood over to commence on Tuesday, 25 July 2023. As a result of an adjournment request made by the father, on 25 July 2023, the matter was stood over until Wednesday, 26 July 2023. The final hearing continued until 28 July 2023.
The matter continued on 14–15 August 2023 and was part heard until 21 September 2023. Prior to the hearing re-commencing on 21 September 2023, both parties filed fresh affidavits to update the Court regarding the child’s reintroduction of time in the father’s care pursuant to the consent orders made on 28 July 2023 and both parties sought leave to re-open their evidence in the proceedings.
The evidence presented by the father included information that he had obtained by non‑consensually accessing information on the child’s electronic devices that he obtained when the child had stayed at his residence in accordance with the orders made on 28 July 2023. I disregarded this information in the substantive proceedings because I considered that it had been improperly obtained. Additional court time was taken up by the re-opening of cross examination of the mother and the father.
In accordance with their statutory responsibility (s 68LA of the Act), the ICL was required to act in the best interests of the child and “if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action” (sub-section 3). As reflected in the substantive reasons for judgment that I delivered, the submissions of the ICL were highly significant and I made orders substantially in accordance with those sought by the ICL.
The conduct of the parties resulted in the ICL also incurring additional costs to ensure the child’s best interests were represented. I respectfully adopt the submission of the ICL, “[i]t is noted that both parties have engaged with Counsel for the entirety of the Hearing and committed significant funds for the purposes of advancing their own Applications. It is respectfully submitted that the commitment of such significant funds should also extend to the covering costs of the Independent Children’s Lawyer.”[3] This is also an additional factor that I have considered under s 117(2A)(g) of the Act, by reference to the decision of Kirby J in CDJ v VAJ (No 2) (1998) 197 CLR 172 as extracted above.
[3] Written submissions of the Independent Children’s Lawyer filed 7 February 2024, paragraph 22.
COSTS IN A LUMP SUM AMOUNT
Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out the methods of calculating costs. These include the Court fixing a specific amount for costs (r 12.17(1)(a) of the Rules), or an order for the costs to be assessed on a particular basis (r 12.17(1)(b) of the Rules).
By ordering costs to be paid by way of a fixed sum amount, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].
I am satisfied that the costs of the ICL are “logical, fair and reasonable” in terms of the principles adumbrated in Stoian v Fiening (Costs) [2014] FamCA 944 at [91].
ORDERS
Accordingly, for these reasons, I make orders in accordance with those sought by the ICL.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 19 March 2024
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