Gustafsson & Jeanes (No 3)
[2024] FedCFamC1F 760
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gustafsson & Jeanes (No 3) [2024] FedCFamC1F 760
File number(s): NCC 459 of 2023 Judgment of: SMITH J Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – PROCEDURAL – oral application for Independent Children’s Lawyer’s Costs – in circumstances where all other parties except the maternal aunt are legally aided – where it would not be in the interests of justice to require the maternal aunt to pay costs – application dismissed Cases cited: CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 76 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 4-8 November 2024 Place: Newcastle Counsel for the Applicant: Ms Beckett Solicitor for the Applicant: Oliver Howells & Co Legal & Conveyancing Counsel for the First Respondent: Mr Flanigan Solicitor for the First Respondent: Resolve Legal Professionals Counsel for the Second Respondent: Mr Allen Solicitor for the Second Respondent: Ann Legal Counsel for the Independent Children's Lawyer: Mr Mooney Solicitor for the Independent Children's Lawyer: Jennifer Blundell & Associates ORDERS
NCC 459 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GUSTAFSSON
Applicant
AND: MR JEANES
First Respondent
MS BLUTH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The oral application for costs made by the Independent Children’s Lawyer is dismissed.
2.There be no order as to costs.
3.The Judgment be reserved.
4.The matter be adjourned to a date to be advised for delivery of reserved Judgment.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Gustafsson & Jeanes has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short oral reasons in relation to the Independent Children’s Lawyer’s (“ICL’s”) mandatory oral application for costs.
This matter has just concluded after 5 days. I have reserved my decision in a very complex matter. It involves two parents but also the maternal aunt.
The maternal aunt is a party because she has voluntarily offered enormous practical assistance to the children in these extraordinarily high conflict proceedings. Further, if the father is held to be an unacceptable risk, and if the mother lacks full parenting capacity, the maternal aunt may be a person who can safely care for the child or assist the mother to do so.
The maternal aunt is the only party who is not subject to a Legal Aid grant, and therefore is the only party from whom costs may be recovered.
It is not necessary to go at great length into the facts of the matter.
It is very important that the public purse be protected, and that those parties who are able to do so pay for the costs of an ICL. That is both fair, and essential to ensure that so much funds as are reasonably accessible continue to be available for this limited service. I note what was said by Kirby J in CDJ v VAJ (No 2) (1998) 197 CLR 172.
However, there is clearly a discretion that the court must apply.
I am comfortably satisfied it would not be in the interest of justice to require the maternal aunt, who is a volunteer joined to provide a safe option if no other exists, to bear any part of the ICL’s costs in circumstances where she has come to assist the court, and to assist children who are not her own children.
In those circumstances I dismiss the ICL’s application for costs. There will be no orders as to costs.
Those are my reasons.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 11 November 2024
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