FARMER and COWAN

[2022] FCWA 3

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FARMER and COWAN [2022] FCWA 3

CORAM: SUTHERLAND CJ

HEARD: ON THE PAPERS- COSTS

DELIVERED : Ex tempore

FILE NO/S: [Redacted]

BETWEEN: MR FARMER

Applicant

AND

Ms COWAN

Respondent

Catchwords:

COSTS - Sought by Independent Children's Lawyer against mother following mother's unsuccessful application to discharge the Independent Children's Lawyer - Costs order made - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Not applicable
Respondent	:	Not applicable

Solicitors:

Applicant	:	Anthony R Clarke & Associates
Respondent	:	Sanctuary Legal Pty Ltd

Case(s) referred to in decision(s):

B & B [2015] FCWA 65
Collins & Collins (1985) FLC 91-603
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123
Greedy and Greedy (1982) FLC 91-250
Farmer and Cowan [2021] FCWA 146
I and I (No 2) (1995) FLC 92-625
Luadaka v Luadaka (1998) FLC 92-830

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farmer and Cowan has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Background

1 [Mr Farmer] (the father) and [Ms Cowan] (the mother) were involved in parenting proceedings concerning their young daughter. Mr Bannerman was appointed as the Independent Children’s Lawyer (ICL) in the case. The trial in the proceedings commenced in March 2021 but was adjourned on a part heard basis after the mother left the court and was taken to hospital.

2 On 24 March 2021 the mother filed a Form 2 application seeking various orders, including that the trial magistrate recuse himself; and that Mr Bannerman be discharged as the ICL (the discharge application). The trial magistrate heard the recusal application in April 2021 and subsequently recused himself.

3 The hearing of the discharge application (and other matters) took place before me on 16 July 2021. For the purposes of the hearing, the parties and the ICL all briefed counsel. On 10 August 2021, I published my reasons for decision (“Decision”).[1] As I recorded in my Decision, the parties and the ICL each relied upon significant evidentiary material for the purposes of the hearing, including affidavits, documents filed in the lead-up to the trial, and the transcript of the trial itself.[2] On 13 August 2021 I made orders pursuant to the Decision, inter alia, dismissing the discharge application. In short, I was not satisfied that the mother established a proper basis for Mr Bannerman’s discharge as the ICL, for the reasons set out in my Decision, particularly at [79] to [86] inclusive. These reasons assume that the reader is familiar with the Decision.

[1] Farmer and Cowan [2021] FCWA 146 (Decision).

[2] Decision at: [9].

4 The parenting proceedings were eventually settled by the making of final consent orders on 25 August 2021. However, the settlement did not extend to the issue of costs, and various costs applications have since followed.

This costs application

5 The ICL seeks costs against the mother in the amount of $3,938 payable to Legal Aid Western Australia (LAWA).[3] The ICL filed short written submissions in support of his costs application.

[3] Form 2A Response filed by the ICL on 4 October 2021. Although that application also sought the costs of the costs application itself, no specific sum was identified or sought and no submissions were made in relation to this aspect of the application

6 The mother’s position was that the ICL’s costs application should be dismissed, such that she and LAWA bear their own costs.[4]

[4] Wife’s written submissions filed on 15 November 2021 at [2].

7 On 1 November 2021, I made procedural orders to facilitate the determination of the ICL’s costs application, including for the mother to file written submissions and an up to date financial statement, and for each of the ICL and the mother to have liberty to seek a relisting to make further oral submissions, failing which I would proceed to deliver reasons and orders from chambers, and without the necessity for any further attendance by them.[5] On 15 November 2021, the mother filed written submissions and a financial statement. As neither the mother nor the ICL sought a relisting of the application, I now provide my reasons from chambers.

Discussion and conclusions

[5] Paragraph 1 of the orders made on 1 November 2021.

8 The ICL’s costs application is made pursuant to s 117 of the Family Law Act 1975 (Cth), in particular: s117(1), (2), (2A), (3), (4) and (5). I now turn to a consideration of the relevant factors pursuant to s117(2A). Where I do not refer to a factor, it is because I consider it is not relevant in this case.

9 In the wife’s financial statement, she deposed that:

a) She is not employed and is in receipt of Jobseeker.[6]

b) Her total gross income (from government benefits and child support) is approximately $670 per week.[7]

c) Her total personal expenditure is approximately $879 per week.[8] This includes the amount of $5.00 per week that the mother pays to LAWA pursuant to a Payment Plan.[9]

d) The mother has assets totalling $16,800, comprising savings ($1,800), a motor vehicle ($8,000) and household contents ($7,000).[10] She also has superannuation entitlements totalling nearly $118,000.[11]

e) She has liabilities totalling approximately $6,000, including a debt to LAWA of just over $5,000 (which is the subject of the Payment Plan).[12]

[6] Wife’s financial statement filed on 15 November 2021: [4].

[7] Ibid: [16].

[8] Ibid: [33].

[9] Ibid: [29].

[10] Ibid: [35] – [41].

[11] Ibid: [45].

[12] Ibid: [46] – [55].

10 The ICL accepted that the mother is not a person of substance.

11 It was common ground that the only party in this matter funded by LAWA was the ICL. However, as is evident from the mother’s financial statement, she has been required to contribute to LAWA in relation to the costs of the ICL and the single expert witness. The total amount paid by LAWA in relation to the matter was over $36,000.[13]

[13] ICL’s written submissions filed 4 October 2021: [5].

12 Although the mother submitted that she was successful in relation to some of the orders sought by her in her application of 24 March 2021, including the recusal of the trial magistrate, the fact remains that the mother was wholly unsuccessful insofar as her discharge application was concerned. As I found in my Decision, although the mother appeared to lay much of the blame on Mr Bannerman for the way the part-heard trial and subsequent events unfolded, I was not satisfied that her view was warranted – and in some matters, the mother was critical of the ICL for not taking steps that were also entirely open to her own counsel to take during the trial, but did not.[14]

[14] Decision: [73] and [80] – [81].

13 There are no other s 117(2A) matters that I consider relevant.

14 Section 117(4) provides that if 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, then the court must not make an order under s117(2) in relation to the costs of the Independent Children’s Lawyer. In this case the mother made no submission to the effect that she would suffer financial hardship if a costs order against her in favour of the ICL was made. Having regard to the existing Payment Plan between the mother and LAWA, I am not persuaded that the mother would suffer financial hardship if she was subject to a costs order in favour of the ICL.

15 The discretion to award costs is a “broad” one, and the various enumerated factors are not to be read in any restrictive way.[15] Any one of the factors may be the sole foundation for an order for costs.[16] Nevertheless, the matters enumerated “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.[17] It is unnecessary to spell out detailed reasons for decisions in costs matters. An exercise of discretion to order costs will be upheld if it appears to the appellate court that there are reasons upon which the trial judge or magistrate could rely.[18]

[15] Collins and Collins (1985) FLC 91-603.

[16] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fishand Anor (2005) 33 Fam LR 123.

[17] I and I (No 2) (1995) FLC 92-625, 82,277.

[18] B and B [2015] FCWA 65; Greedy and Greedy (1982) FLC 91-250; Luadaka v Luadaka (1998) FLC 92-830.

16 On balance, I am satisfied that there are circumstances which justify the making of an order for costs against the mother. I consider that the ICL (and accordingly, LAWA) was unreasonably put to increased costs, given that the mother’s discharge application was wholly unsuccessful.

17 The ICL was instructed by LAWA to seek the entirety of the costs involved in the ICL and counsel responding to the mother’s discharge application in the total amount of $3,938, being legal costs of $3,580 plus GST. Both the ICL’s and counsel’s costs were calculated in accordance with the rates set by LAWA, which are significantly less than the allowable amounts set out in Schedule 2 of the Family Court Rules 2021. Counsel’s costs totalled $1,925, being for 10 hours work at a rate of $175.00 per hour, plus GST. Although the ICL did not provide an itemised schedule of his costs, he also undertook considerable work, including preparing an affidavit in response to the mother’s application and briefing counsel. Given the sheer volume of the evidentiary material which had to be canvassed in preparing for the hearing of the discharge application, I am satisfied that costs claimed were reasonable and appropriate. In conclusion I am satisfied that the mother should pay the entirety of the sum sought to LAWA. Having regard to my findings above, I am satisfied that such amount is just.

Orders

18 I intend to make the following orders:

1. [Ms Cowan] do pay the sum of $3,938 to Legal Aid Western Australia.

2. The Form 2A Response filed by the Independent Children’s Lawyer on 4 October 2021 otherwise be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

12 JANUARY 2022