Garratt and Aiken and Anor (No 3)

[2019] FamCA 714

FAMILY COURT OF AUSTRALIA

GARRATT & AIKEN AND ANOR (NO. 3) [2019] FamCA 714

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer’s application for costs thrown away by reason of adjournment of final hearing – Where adjournment caused by failure to file documents – Where consideration of applicable principles – Where order costs made in favour of the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18(1)

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936
Garratt & Aiken & Anor [2019] FamCA 398
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Parke & the Estate of the Late A Parke (2016) FLC 93-748

APPLICANT: Ms Garratt

RESPONDENT: Ms Aiken

INTERVENOR: Mr C Garratt

INDEPENDENT CHILDREN’S LAWYER: Ms Morton

FILE NUMBER: PAC 3816 of 2016

DATE DELIVERED: 4 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: By way of written submissions last received on 9 August 2019

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Ms Garratt

SOLICITOR FOR THE RESPONDENT: Ms Campbell

SOLICITOR FOR THE INTERVENOR: Mr Lennon of Sydney West Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Morton Family Lawyers

Orders

1. That within one month from this date the paternal grandmother Ms Garratt pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the sum of $1,804 subject to any waiver granted by Legal Aid NSW.

2. That within three months from this date the father Mr C Garratt pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the sum of $1,804 subject to any waiver granted by Legal Aid NSW

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garratt & Aiken and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3816 of 2016

Ms Garratt

Applicant

And

Ms Aiken

Respondent

REASONS FOR JUDGMENT

Introduction

1. The application for determination is the application by the Independent Children’s Lawyer (ICL) in these proceedings for an order for costs of and incidental to the ICL’s engagement in these proceedings being costs thrown away by reason of the adjournment of the final hearing.

2. The proceedings as to final parenting were to be heard over two days to commence on 4 June 2019.

3. At the commencement of the final hearing the Applicant paternal grandmother and Second Respondent father had failed to file documents in accordance with trial directions made 20 August 2018.

4. On the first day of the hearing the paternal grandmother and father’s legal representative did not appear in Court on their behalf, despite being instructed by them to do so. The parties then sought an adjournment which was granted (Garratt & Aiken and Anor [2019] FamCA 398) – these reasons assume familiarity with that judgment) and the ICL sought costs against them which were thrown away by reason of the adjournment. Further orders were made for the father and paternal grandmother to file an Amended Application or Response, a trial affidavit and a Case Outline.

5. At the subsequent court event on 22 July 2019 the father had complied with the orders made on 4 June 2019.

6. The paternal grandmother had not filed in accordance with these orders and her Initiating Application was struck out and dismissed.  

7. The father and paternal grandmother were ordered to file and serve any submissions in response to the ICL’s application for costs. No submissions were subsequently filed on behalf of the paternal grandmother.

ICL Costs

1. The ICL seeks an order that the father and paternal grandmother pay the costs thrown away of the preparation for and attendance on the first day that the matter had been listed for trial, including Counsel’s fee which was an amount of $3,608.

2. The law as to costs is well settled. Section 117 of the Act provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.

3. Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.

4. The relevant considerations in relation to an order for costs are set out in s 117(2A).

5. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:

   a)The financial circumstances of each of the parties to the proceedings;

   b)Whether any party has legal aid and the terms of any grant of aid;

   c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;

   d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   g)Such other matters as the Court considers relevant.

6. Section 117(3) provides:

   (3)To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.

7. Section 117(4) provides:

   (4)However, in proceedings in which an independent children's lawyer for a child has been appointed, if:

   (a)a party to the proceedings has received legal aid in respect of the proceedings; or

   (b) 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;

   The court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.

8. Section 117(5) provides:

   (5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.

9. A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the ICL, because that terminology is susceptible to ambiguity.

10. As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936, 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.

11. In De Roma & De Roma [2013] FamCA 566 Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.

12. The threshold presumption as to each party bearing their own costs has no application to the ICL, who is not a party.

13. The law is well settled that there is power under the section, subject to other statutory provisions referred to below, to make orders for or against the ICL and the Court may make such order as to costs of the ICL and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma (supra)).

14. The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) which states:

    Method of calculation of costs

    (1)      The court may order that a party is entitled to costs:

    (a)      of a specific amount;

    (b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);

    (c)to be calculated in accordance with the method stated in the order; or

    (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

15. It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162 that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.

16. In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.

17. Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93-748 at [130]:

    If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…

18. It is the case that the father in these proceedings is unemployed, and has previously been incarcerated. At the time that the hearing commenced, however, he was not in receipt of a grant of Legal Aid. He was represented on a pro bono basis.

19. It is submitted on behalf of the father that he failed to comply with trial directions due to a failure of his then legal representative to advise him with respect to the Court’s practices and procedures and assist him to comply with court orders. It is, therefore, the father’s contention that he ought not be punished for the failure of his legal representative. 

20. The father submits that s 117(4)(a) of the Act should be read as requiring the Court to not award costs to the ICL if a party is in receipt of a grant of Legal Aid at the time of determining the issue of costs. Such a submission fails to acknowledge that at the relevant time being the first day of the hearing he was not in receipt of a grant of legal aid. Regardless, the father submits that as he is unemployed a costs order would cause him considerable financial hardship. In the absence of any submission as to the father’s financial circumstances otherwise and in light of the modest amount in issue, his present unemployment can be addressed by an order providing some accommodation as to due payment.

21. There were no submissions made on behalf of the paternal grandmother. There is no evidence before the Court that she had a grant of Legal Aid or what her financial circumstances are.

22. The ICL submits that her costs total $3,608, to be paid equally in the sum of $1,804 by the father and paternal grandmother.

23. In the circumstances it is proper that there be an order for payment of the ICL costs as sought. An order will be made accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 October 2019.

Associate: 

Date:  4 October 2019