Gahen & Gahen (No 2)

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.