Galloway and Steele (No 2)

[2011] FamCA 875

FAMILY COURT OF AUSTRALIA

GALLOWAY & STEELE (NO 2) [2011] FamCA 875

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Galloway

RESPONDENT: Ms Steele

INDEPENDENT CHILDREN’S LAWYER: Reid Family Lawyers

FILE NUMBER: SYC 6615 of 2007

DATE DELIVERED: 11 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 11 August 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Holmes

SOLICITOR FOR THE RESPONDENT: Ms Adams

INDEPENDENT CHILDREN’S LAWYER: Ms Reid

Orders

1. Leave is granted to the father to make an oral application that the mother pay the father’s costs of and incidental to her Application in a Case filed

   
   

   23 December 2010 in relation to a stay and that such costs to be as agreed or assessed in accordance with the Rules.

2. On Application in a Case filed by the Independent Children’s Lawyer on

   
   

   10 August 2011 in relation to costs:

   (a)the father pay on account of the costs the Independent Children’s Lawyer the sum of $2,000

   (b)no order for costs against the mother.

3. The father’s application for an order that the mother pay the father’s costs of her Application in a Case filed 23 December 2010 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Galloway and Steele 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 SYDNEY

FILE NUMBER: SYC 6615  of 2007

Mr Galloway

Applicant

And

Ms Steels

Respondent

And

Reid Family Lawyers

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Before the Court are two applications for orders for costs arising out of proceedings taken between the parties to this matter with respect to the parenting of their child.  The first application is an application made by the Independent Children’s Lawyer for an order that each of the parties bear one-half of the costs incurred by the Legal Aid authorities with respect to acting for the child.

2. The costs of the representation of a child in proceedings such as this is clearly a legitimate expense of the child, and the ordinary position is that the parents of a child have the responsibility for caring for and providing for those necessary expenses.

3. However, in the exercise of my discretion under section 117, if I am to depart from the usual rule that each party pays their own costs, I am obliged to take into account a number of factors.  Included in those factors are the financial circumstances of each of the parties to the proceedings.  In this particular case, it seems that the financial circumstances of the father are conceded as being such as would enable him to meet an order for costs; the financial circumstances of the mother it seems are such that it appears that she would have some difficulty in meeting an order for costs, surviving, as she does, on social security and with savings of only $3,000 and, it is pointed out, having the expense of the provision of supervision pursuant to the orders made by this Court. 

4. There is no doubt that in this particular case the father has been wholly successful in his application and the mother’s allegations have not succeeded in being established.  The success of the father’s case is, however, in part due to the efforts of both the father and the Independent Children’s Lawyer.  The Independent Children’s Lawyer has been funded out of the public purse, and the principle seems to be that where possible, there should be some reimbursement to the purse. 

5. I am not unsympathetic to the argument put by the father that he has carried a great burden already in relation to proving himself innocent of allegations of a very serious nature and that to impose a further responsibility upon him would, to him at least, seem unfair in the circumstances.  However, given that these are costs which relate to the welfare of the child of which he has primary care, I believe some order for costs should be made, although having regard to the matters referred to, it is not my intention to make an order in the sum sought.

ORDERS DELIVERED

1. In relation to the application by the father against the mother for an order for costs thrown away by virtue of an unsuccessful application for a stay, I note that the stay was withdrawn on the second day it was before the Court, and I would be prepared to make an order for costs in favour of the father with respect to the first day, ordinarily, save for the current financial circumstances of the mother as adumbrated earlier, and in those circumstances, I decline to make an order for costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 11 August 2011.

Associate:

Date:  15 November 2011