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
De Roma & De Roma (2013) FamCA 566 LAC & TRF & LKL (2005) FamCA 158 PJ & NW (2005) FamCA 162
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Gahen & Gahen (No 2) [2013] FamCA 936
Case
[2013] FamCA 936
Decision Date
CaseChat Overview and Summary
The Family Court of Australia considered an application for costs made by the Independent Children’s Lawyer (ICL) against the mother, Ms Gahen. The father, Mr Gahen, was not subject to the application as he was legally aided. The dispute concerned the mother's contribution towards the ICL's costs incurred during parenting proceedings.
The court was required to determine whether to order the mother to pay a contribution towards the ICL's costs, and if so, in what amount. This involved considering the factors outlined in section 117(2A) of the *Family Law Act 1975* (Cth), including the conduct of the parties in the litigation and the mother's financial circumstances. The court also had to interpret the legislative intent behind section 117(5) of the Act, which mandates that the court disregard the funding of the ICL by a legal aid scheme, with a view to protecting the public purse.
Justice Austin reasoned that the legislative intent of section 117(5) was to protect the public purse by inclining the court to order parties to contribute to the ICL's costs. While acknowledging the mother's tight financial circumstances, the court found that her conduct in the litigation was a more compelling factor. Specifically, the court noted that the mother had unreasonably maintained allegations of sexual abuse against the father, which lacked evidential basis and prolonged the proceedings. The court concluded that the mother's unsuccessful proposal and her unreasonable maintenance of spurious allegations significantly influenced the decision. The court also considered that the mother had been funded by her husband and father for the substantive proceedings and could therefore resort to these sources for payment of costs.
The court ordered the mother to pay the ICL's costs, assessed at $2,725 inclusive of GST, within six months of the date of the orders. This amount represented half of the ICL's total costs, less a prior contribution made by the mother. The court allowed an extended period for payment to ameliorate the financial impact on the mother.