Exton and Fahey

[2019] FamCA 161

FAMILY COURT OF AUSTRALIA

EXTON & FAHEY [2019] FamCA 161

FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer applied for the parties to contribute equally to her costs of $18,152 for representing the interests of two children in a five day trial – Where both parties were self-represented at trial – Where both parties are in paid employment – Where the father is responsible for the whole financial cost of the children’s physical needs – Where the mother pays child support of $15 per month - Where payment of the full order sought would create hardship for father - Where the mother has been granted a waiver of fees by Legal Aid NSW – Ordered that the father pay to Legal Aid NSW the sum of $907, being 10 percent of the order sought within six months of the date of orders.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Exton

RESPONDENT:	Mr Fahey
INDEPENDENT CHILDREN’S LAWYER:	Denise Clark Solicitor & Advocate

FILE NUMBER: NCC 2326 of 2013

DATE DELIVERED: 21 March 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: By way of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:	N/A
SOLICITOR FOR THE APPLICANT:	N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT:	N/A
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Boyd
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Denise Clark Solicitor & Advocate

Orders

1. That the father pay to Legal Aid NSW the sum of $907.00 within 6 months of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Exton & Fahey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC2326/2013

Ms Exton

Applicant

And

Mr Fahey

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Independent Children’s Lawyer (“ICL”) for the parties to contribute equally to her costs of representing the interests of two children now aged 11 and nine in a five day trial before me in November/December 2016.

2. The amount sought is $18,152 in equal shares ($9,076 each).

Brief History of Relevant Events 

1. Final orders and reasons for judgment were delivered on 19 January 2017.

2. There was a change of residence for one child to the father.  As a result both children live with the father.

3. In those circumstances the issue of the costs of the ICL was dealt with by the making of the following orders:

   [17]Within 28 days of the date of these orders the ICL shall provide to the parties and my associate any costs application she proposes to make disclosing costs and disbursements and any contribution already made by either party.

   [18]Unless costs are agreed the application can be listed on a date to be determined.

4. On 25 January 2017 the ICL wrote to each of the parties providing a detailed costs notice.

5. Each party was asked to contribute $9,076.10.

6. Each party was also advised that if payment was not forthcoming the ICL would ask for the matter to be relisted.

7. On 15 February 2017 the ICL sent a reminder letter to each party including a deadline for response.

8. The ICL thereafter made a request to the Court that the matter be re-listed.

9. On 28 March 2017 the matter came before me.  Counsel for the ICL appeared.

10. There was no appearance by or on behalf of either of the parties.

11. Orders were made as follows:

    [1]Each of the party shall pay to the Legal Aid Commission the sum $9,076.10 within 28 days of the date of these orders NOTING that an application to pay by instalments can be made to the Legal Aid Commission.

    [2]Order 1 above is suspended for a period of 28 days.  In the event either party makes written submissions in relation to child support, their current financial circumstances and/or costs paid or payable through legal representation during these proceedings, those matters will be considered and if appropriate amendments made to the costs order.  In the event no submissions are received by the Court, Order 1 is made without further reference to the parties and the suspension thereof is lifted.

12. On 21 April 2017 submissions were received on behalf of the father.

13. On 26 April 2017 the father was directed to provide a copy of those submissions to the mother.  He did so by email on the same day.

14. On 26 April 2017 submissions were received on behalf of the mother.

The Law

1. The principle established in s 117 of the Family Law Act 1975 (Cth) (“the Act”) is that:

   (1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g)such other matters as the court considers relevant.

Costs of independent children's lawyer

(3)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.

(4)Omitted intentionally.

(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.

1. I consider that there is a justifying reason to consider contribution of costs of the ICL in this matter.

2. Both parties were self-representing in the trial.

3. The involvement of the ICL and counsel instructed was not only a benefit to the Court, but to each of the parties.

4. Accordingly, the factors set out in the Act must be considered.

(a) Financial Circumstances of the Parties - s 117(2A)(a)

1. Both parties are in paid employment.

2. The father earns $65,000 per annum gross with industry based equipment purchased at his own expense of around $15,000.

3. He maintains this employment to ensure geographic stability and for the flexibility afforded to him by his employer around care of the two children.

4. For three months post hearing, A, the elder child saw a psychologist at $250 per week.

5. Both children are seeing a speech therapist.  This is likely to continue for some time especially for B.  A’s costs are borne by the father at $70 per week.

6. The father travels to and from work at a cost of around $200 - $250 per week in petrol and vehicle maintenance.

7. The children attend out of hours school care at $70 per week.

8. Significantly the father is responsible for the whole financial cost of the children’s physical needs.  The mother pays child support of $15 per month.

9. Over the course of the litigation the father expended $20,997 in legal costs.  Ultimately he represented himself in the trial.

10. The mother is working part-time cleaning.  She did not disclose her income in submissions.  The mother is also studying full time.

11. The mother expended “in excess of $2,500” on legal fees, which sum she borrowed from family members and was paying back.

12. The mother has a car with a debt of $4,000 which she is paying off.

13. Ultimately the mother represented herself.  She was unable to obtain a grant of Legal Aid.  I infer that may have been on the basis of merit.

14. The mother made no reference to financial contribution or Child Support Assessment in her submissions.

15. The only evidence therefore is that of the father.

(b) Conduct of the Proceedings - s 117(2A)(c)

1. In 2014 after three years of turbulent post-separation conflict, the parties consented to final parenting orders.

2. I found that the orders failed almost immediately as a result of the mother not moving with the children to Town W as had been agreed.  She moved elsewhere with a new partner.

3. Thereafter the father, having also met a new partner, abandoned Town W and moved to the Region P.

4. In 2015 the mother made an application to vary the consent orders.

5. The father failed to comply with directions and to appear at Court for several months.

6. In September 2015 the elder child moved to live with his father by agreement.

7. In October 2015 the 2014 consent orders were suspended.

8. In December 2015 interim parenting orders were made.

9. The mother retained the elder child after the holidays.

10. In May 2016 an Apprehended Violence Order was put in place for 12 months for the protection of the father and his partner from the mother.

11. In June 2016 an interim hearing was adjourned part-heard on the application of the mother over the opposition of the father.

12. Overall I consider that each party could be criticised for their conduct of proceedings.

13. The trial itself began and concluded within the allocated time.  The presence of the ICL and counsel instructed was an important factor in achieving that outcome.

(c) Hardship - s 117(4)(b)

1. Payment of the full order sought by the ICL would create hardship for the father in circumstances where he has the full-time care of the children and is entirely financially responsible for them.  He is working to support them.  However a modest contribution is appropriate in the order of 10 percent, being the sum of $907.

2. The mother has not disclosed her income.  She is studying full-time to obtain qualifications in healthcare.  That is commendable but it is her choice to work part-time and pay minimal child support.

3. It would have been appropriate in my view for the mother to have made a contribution, not the full amount but approximately half of it.  However she has been granted a waiver.

4. Orders are made accordingly.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 21 March 2019.

Associate: 

Date:  21 March 2019