Gahen & Gahen (No 2)
[2013] FamCA 936
FAMILY COURT OF AUSTRALIA
| GAHEN & GAHEN (NO. 2) | [2013] FamCA 936 |
| FAMILY LAW – COSTS – Mother to pay half the costs of the Independent Children’s Lawyer – protection of public purse - consideration of the factors in s117(2A) - conduct in litigation more compelling than tight financial circumstances – extended period of time to pay allowed |
| Family Law Act 1975 (Cth) s117 |
| De Roma & De Roma (2013) FamCA 566 |
| APPLICANT: | Ms Gahen |
| RESPONDENT: | Mr Gahen |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 1953 | of | 2010 |
| DATE DELIVERED: | 10 October 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 10 October 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tregilgas |
| SOLICITOR FOR THE APPLICANT: | Hills Solicitor’s |
| COUNSEL FOR THE RESPONDENT: | Mr White |
| SOLICITOR FOR THE RESPONDENT: | Powe & White Family Lawyers |
Orders
The mother shall pay the Independent Children’s Lawyer’s costs of and incidental to these proceedings, assessed in the sum of $2,725.00 inclusive of GST, within six months of the date of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gahen & Gahen (No. 2) 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 NEWCASTLE |
FILE NUMBER: NCC 1953 of 2010
| Ms Gahen |
Applicant
And
| Mr Gahen |
Respondent
And
| Independent Children’s Lawyer |
EX-TEMPORE
REASONS FOR JUDGMENT
Before the Court for consideration today is an oral application made by the Independent Children's Lawyer against only the mother for a contribution towards the Independent Children's Lawyer’s costs incidental to the parenting dispute determined between the parties by the publication of orders and reasons by the Court on 20 September 2013.
Order 23 made on that date reserved the question of costs for 28 days, and in accordance with the terms of that order, the Independent Children's Lawyer notified the court of an intention to make an application for costs, which resulted in the matter being re-listed before the court today.
The Independent Children's Lawyer’s application is made against only the mother, she having privately funded her representation in the substantive proceedings.
The application for costs is not made against the father because of the Independent Children's Lawyer’s recognition of the provisions of section 117(4)(a) of the Family Law Act, precluding an order for costs against a legally-aided litigant. The father was legally-aided for the purposes of his contest of the substantive proceedings.
Lest it not otherwise be obvious, the Independent Children's Lawyer is not a party to the proceedings and so the primary rule enunciated in section 117(1) of the Act, that each party to the proceedings shall ordinarily bear his or her own costs, does not bind the Independent Children's Lawyer.
The Court undoubtedly has power to make the costs order proposed by the Independent Children's Lawyer, because section 117(3) clearly envisages it.
The application made by the Independent Children's Lawyer against the mother is for the payment of the sum of $2,725, being one half of the Independent Children's Lawyer’s costs of the proceedings, less the contribution already made by the mother to her share of those costs. The mathematical calculation is the mother’s half share (being $4,375), less her initial contribution (of $1,650), leaving a residual amount of $2,725.
The Court is mandated by section 117(5) of the Act to disregard the funding of the Independent Children's Lawyer by a legal aid scheme. A question arises as to the actual meaning of the legislative intent for the Court to disregard the legal aid funding of the Independent Children's Lawyer, because that terminology is susceptible to ambiguity. It could conceivably mean either:
(a)The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or
(b)The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.
Justice Watts explained why the former is the preferred connotation, since the purposes of the legislative amendment was to protect the public purse (see De Roma & De Roma (2013) FamCA 566 at [2]-[3], [39]-[52], and [54]). Such an approach is consistent with prior authorities (see PJ & NW (2005) FamCA 162 at [66], and LAC & TRF & LKL (2005) FamCA 158 at [61]-[63]).
In such circumstances I proceed to consider the costs application in the knowledge of the legislative intent that I should protect the public purse, where possible. Of course, the application for costs is still determined in the context of the statutory criteria prescribed by section 117(2A) of the Act.
In resistance of the application, learned counsel for the mother effectively referred only to section 117(2A)(a), relating to the financial circumstances of the mother. Learned counsel adopted the contents of the mother’s affidavit filed on 9 October 2013, the contents of which were not the subject of any factual dispute.
The mother’s personal financial circumstances are tight. Her only assets are superannuation and a banking account. She presently receives no child support for the child of the parties from the father. Her financial needs, and those of the child and the other children of the mother, are met by the largesse of the mother’s current husband and the mother’s father. Indeed, those people were the ones who funded the mother’s contest of these proceedings.
I accept that, in isolation from other considerations, the mother’s financial circumstances do not appear to allow her to make a contribution towards the Independent Children's Lawyer’s costs, but, of course, that is not the only consideration.
The orders made by the Court in the Part VII parenting proceedings between the parties represented a punishing rejection of the mother’s allegations against the father, and those associated with him, of sexual abuse of the subject child. An objective analysis of the evidence revealed a significant lack of veracity in the allegations. They lacked any reasonable evidential basis, and that is a consideration of some influence in the present context, because section 117(2A)(c) requires the Court to take into account the conduct of the parties in the litigation.
Perusal of the Court’s reasons for the orders leaves little room for inference other than that the mother unreasonably maintained allegations against the father, which ought have been abandoned by her long ago. In fact, her maintenance of those allegations prolonged the litigation unreasonably.
As a consequence of the Independent Children's Lawyer’s involvement and her lending obvious support to the father, the Court was able to closely analyse the allegations maintained by the mother to find that they were unreasonably maintained.
In effect, the trial was necessitated by the mother’s maintenance of allegations which were spurious and the mother’s proposal in the proceedings was wholly unsuccessful. In my view, that is a much more compelling consideration than the mother’s present lack of funds.
The mother resorted to her husband and her father to fund her contest of the litigation and it is not unreasonable to expect that she can resort to the same sources for her payment of some costs to the Independent Children's Lawyer.
I am satisfied that the mother should contribute towards the Independent Children's Lawyer’s costs, and the amount stipulated by the Independent Children's Lawyer is a reasonable amount. In fact, it ought be regarded as most modest.
In order to assist the mother to some extent and ameliorate the financial impost, I will make an order which permits her a significant period of time within which to remit the payment to the Independent Children's Lawyer.
For those reasons, I make the following orders.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 10 October 2013.
Associate:
Date: 3 December 2013
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