Gillen & Lindo (No 2)
[2021] FedCFamC1F 211
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gillen & Lindo (No 2) [2021] FedCFamC1F 211
File number(s): CAC 2594 2019 Judgment of: GILL J Date of judgment: 19 November 2021 Catchwords: FAMILY LAW – COSTS – Child representative – Application for costs against the mother by the Independent Children’s Lawyer – Consideration of Family Law Act 1975 (Cth) ss 117(4) – Mother previously received legal aid in respect of the proceedings – Section 117(4)(a) applicable – Application for costs dismissed. Legislation: Family Law Act 1975 (Cth) ss 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.34
Cases cited: Gahen & Gahen (No. 2) [2013] FamCA 936
Legal Aid ACT & Westwell (2021) FLC 94-013
Division: Division 1 First Instance Number of paragraphs: 18 Date of last submission/s: 30 September 2021 Date of hearing: In chambers Place: Canberra Solicitor for the Applicant: No appearance Counsel for the Respondent: Ms Clifton Solicitor for the Respondent: Enza Ruscica Solicitor Counsel for the Independent Children's Lawyer: Ms Davis Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 2594 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GILLEN
Applicant
AND: MS LINDO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
19 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application for costs filed by the Independent Children’s Lawyer on 15 September 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillen & Lindo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
This judgment concerns an application for costs made by the Independent Children’s Lawyer (the ICL) against the mother following judgment delivered on 2 September 2021 where the mother’s Application in a Case filed 16 July 2021 seeking the discharge of the ICL and appointment of a replacement ICL was dismissed. In the event that a party pursued an order for costs following those orders, directions were made to enable such. The ICL has done so by means of filing submissions as to costs on 15 September 2021, with the mother filing submissions resisting any such order as to costs on 30 September 2021.
The ICL seeks costs fixed in the sum of $6,314.98 and pursues them solely against the mother. The father has not taken part in this argument.
The background to this application is that the mother filed an application seeking the ICL’s discharge. That application was successfully resisted by the ICL, who was supported by the father in resisting such application. In resisting the application the ICL reasonably briefed counsel. As to quantum, the ICL relied upon costs notices filed 17 August 2021, along with an updated notice of costs pursuant to r 12.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). While the provision provides a starting point that each party is to be his or her own costs, Austin J identified in Gahen & Gahen that:
5. 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.
6. The Court undoubtedly has power to make the costs order proposed by the Independent Children’s Lawyer, because section 117(3) clearly envisages it.[1]
[1] Gahen & Gahen (No. 2) [2013] FamCA 936, [5]–[6].
It may be observed that the considerations set out in s 117(2A) still apply to such an application to inform the Court as to whether there are circumstances justifying an order for costs.
As identified by Austin J, s 117(3) provides specifically that the costs of the ICL may be awarded against the parties to the proceedings in such proportions as the Court considers just. There is, however, a restriction in the Court's capacity to order the ICL's costs contained at s 117(4) which is in the following terms:
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
Thus if either of the conditions set out at s 117(4) are met then the court is precluded from making an order that a particular party bear the ICL's costs or a part thereof.
THE CIRCUMSTANCES IN THIS CASE
The ICL relied upon a narrow suite of circumstances to justify the costs that she pursued. Firstly, the ICL noted that the mother’s application had been wholly unsuccessful. She observed that the manner of conduct of the litigation also pointed toward costs being awarded in that the mother had pursued unmeritorious claims of actual and apprehended bias against the ICL.
In terms of financial capacity there was only limited material before the Court. However, the ICL observed that the mother secured private representation by counsel in respect of her unsuccessful application and in other material before the Court had deposed to working five days per week.
The mother resisted the application for costs, drawing on a number of different considerations.
The mother firstly asserted that at various times she has been granted legal aid in respect of the proceedings, asserting that from 27 June 2019 she was granted legal aid funding which was continued on 13 August 2020 and 16 October 2020. She asserted that this meets the description in s 117(4)(a) of where “a party to the proceedings has received legal aid in respect of the proceedings”, and so operates as a bar against a costs award.
Conceding there is little authority as to the scope of that provision, the mother also pointed to her financial circumstances, noting that having received legal aid for a period of time implied that she was of such limited means as to result in her suffering financial hardship if she was to bear a proportion of the costs of the ICL. Accepting that she secured private legal representation for the proceedings against the ICL, she resisted an inference being drawn that such implies that she is financially secure. She observed that having engaged private representation she has had to borrow funds to pay such fee with a bank loan at Exhibit B of the material that she produced indicating a debt of $30,000 which she asserted in her submissions was for legal fees.
CONSIDERATION
Although the mother claimed to have a loan of $30,000 that is referable to legal fees, the document provided does not establish that the $30,000 loan was for such a purpose. Nor, in the absence of other material, does a mere loan statement establish that a litigant is subject to financial circumstances that mean that a costs order either must not or should not be made. It is trite to observe that a party’s financial circumstances are not able to be inferred from establishing a single debt without identifying what the other means and circumstances might be. While an inference may be available from the previous receipt of legal aid, it does not speak sufficiently to the mother’s current circumstances, where the last grant was about a year ago and there is no indication of ongoing eligibility for legal aid.
Where the onus was on the mother to do so, she has not established circumstances such as to cause the Court to consider that she would suffer financial hardship if she had to bear a proportion of the costs of the ICL.
A more difficult question emerges in respect of whether the mother’s previous receipt of legal aid for the family law proceedings is such as to bring her within the prohibition contained at s 117(4)(a). It is not a matter regarding which the mother identified authority, and the recent Full Court authority of Legal Aid ACT & Westwell[2] that dealt with the section did not deal with the issue of whether a past grant is sufficient to attract the operation of the subsection.
[2] (2021) FLC 94-013.
In construing the subsection it should be observed that the operative circumstance is unqualified. It does not suggest that the party must currently be in receipt of legal aid, or in receipt of legal aid for a particular portion of the proceedings. It is expressed simply in the past tense.
CONCLUSION
Here the mother has adduced evidence sufficient to demonstrate that she has received legal aid in respect of the proceedings, even if she no longer does. That is sufficient to oust the power of the Court to make an order against her in respect of the ICL.
The application will therefore be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 19 November 2021
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