EARLES & HIGHSMITH

[2013] FamCA 157

FAMILY COURT OF AUSTRALIA

EARLES & HIGHSMITH [2013] FamCA 157

FAMILY LAW – COSTS – Application by Independent Children’s Lawyer for costs in respect of two applications brought by the mother – Where mother wholly unsuccessful in both applications – Subsection 117(4) of the Family Law Act 1975 (Cth) in respect of costs of an independent children’s lawyer – Where mother’s financial circumstances are such that a costs order made in favour of the Independent Children’s Lawyer would place her in financial hardship – Application dismissed

Family Law Act 1975 (Cth)

Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Earles

RESPONDENT: Mr Highsmith

INDEPENDENT CHILDREN’S LAWYER: Ms Soliman

FILE NUMBER: PAC 3528 of 2008

DATE DELIVERED: 21 February 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 21 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT:

Mr Richardson

James Richardson Family Lawyers & Notary Public

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Soliman

Orders

(1)That the father’s legal representative be granted leave to see a Registrar today in respect of the father’s stay application being listed.

(2)That I stand the application of the father in respect of costs filed on 24 December 2012 over to 27 March 2013 at 10.00 am for hearing.

(3)That I reserve the costs of both parties of this day.

(4)That I direct that Mr Richardson within seven (7) days of today’s date furnish to the mother a complete set of the documents forwarded to her originally under cover of letter of 20 February 2013.

(5)That I refuse to make any order in respect of the Independent Children’s Lawyer’s costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Earles & Highsmith 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 PARRMATTA

FILE NUMBER: PAC 3528 of 2008

Ms Earles

Applicant

And

Mr Highsmith

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1.This matter comes before me today in respect of an application for costs by the Independent Children’s Lawyer in these most unfortunate proceedings.  The costs that are sought are costs that relate to the period of time after I had delivered Judgment in the substantive issue on 8 October 2012. 

2.On 12 October 2012, the mother’s application for a stay of my Final Orders was listed for hearing.  Costs are sought in respect of that day by the Independent Children’s Lawyer.  That matter was adjourned until 17 October 2012 as a result of matters which arose between the Independent Children’s Lawyer and the wife’s then counsel. 

3.On 17 October 2012, the mother’s stay application and an application for discharge of the Independent Children’s Lawyer, which had been made orally on 12 October 2012, were both before me.

4.On that day, the stay application was dealt with and dismissed.  The issue of whether or not the Independent Children’s Lawyer should be discharged was adjourned from that day to 13 November 2012.  An application for adjournment of that aspect of the matter was granted because material had been filed on behalf of the mother only the day before and the Independent Children’s Lawyer required time in which to deal with that material.  The Independent Children’s Lawyer’s costs in relation to both applications dealt with (in full or in part) that day were reserved.  

5.On 13 November 2012, I dealt with the mother’s application for discharge of the Independent Children’s Lawyer.  I dismissed that application.  I also dealt with a dispute concerning a publication order that was contemplated in an attempt to discover the whereabouts of the child, so as to recover and place the child with the father in accordance with my Final Orders made on 8 October 2012.  The Independent Children’s Lawyer seeks costs in respect of that day.

6.The mother was represented on 12 October, 17 October and 13 November 2012.  She was unrepresented before me today.

The law to be applied

7.Costs in this Court are governed by section 117 of the Family Law Act1975 (Cth) (“the Act”). Subsection (1) of that section tells me that, subject to the following matters, each party should bear his or her own costs in Family Court proceedings. However, subsection 117(2) tells me that if there are circumstances that justify it, the Court may make an order for costs. It was made clear by their Honours of the High Court in Penfold v Penfold[1]  that the circumstances need not be exceptional, but must be such that they justify the making of such an order.  Subsection 117(2A) then tells me that in considering what order, if any, should be made under subsection (2), the Court shall have regard to the matters set out in subparagraphs (a) to (g) therein.

[1] (1980) 144 CLR 311

8.Subparagraph (a) deals with the financial circumstances of each of the parties to the proceedings.  The mother comes before me claiming that she is in effect in no position to be able to afford any payment because she is living, she asserts, hand to mouth and depending on other persons and organisations to assist her in meeting her daily living expenses. 

9.Neither party is in receipt of legal aid at the present time (subparagraph (b)).  I am aware that the mother has received legal aid throughout the proceedings but not from the point in time when I delivered my substantive Judgment and Final Orders on 8 October 2012.  I am not sure what the mother’s present position in respect of legal aid is.  It appears, and I place this on the record, that she has made one application, which has been unsuccessful, and she has made a fresh application, which is yet to be dealt with.  There is also some suggestion that she is also seeking relief from the legal aid review panel.

10.I take into account the conduct of the parties to the proceedings (subparagraph (c)).  All of these matters that affect the Independent Children’s Lawyer have, to my mind, been commenced or continued by the mother.  Certainly, the 12^th of October was her listing for a stay.  It was on that occasion her then counsel made it clear that he was far more concerned with dealing with an application to discharge the Independent Children’s Lawyer rather than proceeding with the stay. 

11.On 17 October 2012, the stay application was heard and, as I have said, dismissed.  On 13 November 2012, the matter was before the Court to allow the mother to proceed with her application to discharge the Independent Children’s Lawyer.  She also sought to become involved in relation to an application for a publication order that was sought by the father’s legal representatives. 

12.The work that has been done by the Independent Children’s Lawyer since my Final Orders of 8 October 2012 has been necessitated by applications which the mother has, at various times, made.

13.Whether the proceedings were necessitated by the failure of a party to comply with a previous order (subparagraph (d)) causes me some difficulty.  I am not able to be satisfied that the mother, on the evidence presently available before me, has failed to comply with an order.  It appears to me that with the lack of any further evidence, I am not able to be satisfied, to the extent I believe I would need to be satisfied, that she was in some way involved with the failure to deliver the child to the father in accordance with my Final Orders of 8 October 2012. 

14.As to subparagraph (e), whether any party to the proceedings has been wholly unsuccessful, there is no doubt that in respect of the applications brought, the mother has been wholly unsuccessful.  She failed in her application for a stay.  She failed in her application to discharge the Independent Children’s Lawyer.  So far as I am concerned, this particular subparagraph is completely against her. 

15.I am not aware of any written offer (subparagraph (f)), nor would I expect one in these circumstances. 

16.I turn to subparagraph (g), which, to my mind, is a general justice and equity provision.  I am concerned that the mother simply believes that because she is impecunious, and I am satisfied she is in difficulties financially, she can take whatever action she likes without consequence.  This clearly is not a satisfactory manner in which to conduct litigation.

17.However, and with some real misgiving, I believe that subsection 117(4) of the Act has direct application in this present case. That subsection is in the following terms:-

(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.

18.I am not required in this present situation to construe whether or not the word “received” in subparagraph (a) of that subsection applies only in the past tense, or whether it requires and imports some present receipt of legal aid by the mother.

19.To my mind the germane subparagraph is 117(4)(b), which requires that if I consider that the mother would suffer financial hardship, I must not make an order under subsection 117(2) in respect of costs of an Independent Children’s Lawyer. 

Discussion & Conclusion

20.I have heard what has been put by Ms Soliman as Independent Children’s Lawyer.  What she puts, with respect, makes real sense; that if I make an order and postpone its payment for some period of time, the mother’s position may well be that she could afford to pay such an order. 

21.Certainly, there is a significant body of case law that is authority for the proposition that impecuniosity of itself is no bar to the making of a costs order. However, I take that series of cases to deal with costs as between parties. Therefore, such costs are not caught by the specific provisions of subsection 117(4) of the Act, which deal specifically with the costs of an Independent Children’s Lawyer. I must say that, were it not for subsection 117(4), I would have no hesitation in making an order against the mother and I would have no hesitation in making that order in the sum sought by the Independent Children’s Lawyer. The sum asserted by the Independent Children’s Lawyer was, in the circumstances, extremely modest.

22.Having said that, and with real regret, I find that as I understand the provisions of subsection 117(4) of the Act, I must not make an order against the mother in this case in favour of the Independent Children’s Lawyer.

23.However, let me end by saying this.  Those provisions are specific to the costs of an Independent Children’s Lawyer.  The mother still has matters that she seeks to agitate before the Court.  The Judgment I have delivered today cannot, and will not, be capable of being relied upon by the mother to establish in some way that any costs sought in future, particularly by the other party, should be refused. 

24.The mother is on notice that she cannot simply “willy-nilly” involve the other party and the Independent Children’s Lawyer in proceedings incurring costs to them respectively then walk away saying that she is unable to pay them in respect of their costs.

25.However, having regard to the clear intention of subsection 117(4) of the Act, I must determine whether I am satisfied that the mother would suffer “financial hardship” if an order were made as to the Independent Children’s Lawyer’s costs. In this case, I am so satisfied. Accordingly, I refuse the application of the Independent Children’s Lawyer.

26.I make the orders as set out at the forefront of these reasons for Judgment.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 21 February 2013.

Legal Associate:      

Date:    19 March 2013