Habib and Ibrahim (No. 2)

[2018] FamCA 777

FAMILY COURT OF AUSTRALIA

HABIB & IBRAHIM (NO. 2) [2018] FamCA 777

FAMILY LAW – COSTS – Costs application made by the Independent Children’s Lawyer – Consideration of applicable principles – Where defended parenting proceedings – Where significant issues for determination – Where orders ultimately made as contended for by ICL - Ordered that each party pay by way of contribution to the Independent Children’s Lawyer’s costs the sum of $7,500.00.

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
Habib and Ibrahim [2018] FamCA 633
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Parke & the Estate of the Late A.Parke (2016) FLC 93-748

APPLICANT: Mr Habib

RESPONDENT: Ms Ibrahim

INDEPENDENT CHILDREN’S LAWYER: Mr Bell

FILE NUMBER: PAC 3236 of 2016

DATE DELIVERED: 28 September 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: By way of written submissions last received on 17 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Godden Lawyers

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stephen W Bell & Associates

Orders

1. That within two months from this date the father pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the sum of $7,500.00.

2. That within two months from this date the mother pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the sum of $7,500.00.

The Court Notes That

1. The parties are able to make application to Legal Aid NSW for a waiver in whole or as to part of their obligations arising from these orders.

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 Habib & Ibrahim (No. 2) 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 3236 of 2016

Mr Habib

Applicant

And

Ms Ibrahim

Respondent

REASONS FOR JUDGMENT

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.

2. The proceedings as to final parenting were resolved following a seven day defended trial and delivery of reasons for judgment and orders made 19 July 2018: Habib and Ibrahim [2018] FamCA 633.

3. Orders were as follows:

   (1)That all previous parenting orders in relation to the child X born … 2009 (“the child”) be discharged.

   (2)That the child live with the father.

   (3)That the father be at liberty to choose to have the child reside at the home of the paternal aunt Ms B for such period as determined by him in consultation with the paternal aunt and the therapist appointed pursuant to these orders.

   (4)That the father have sole parental responsibility for major long term issues relating to the child.

   (5)That prior to the father making decisions relating to major long term issues as to the child including but not limited to his health and education, the father shall notify the mother in writing, such writing to include SMS or email communication, of his proposal and seek her response in writing within 21 days and take into account the mother’s response provided such response is received within the stated period and notify the mother of his ultimate decision.

   (6)That the father as soon as practicable obtain a mental health referral for the child to attend upon Ms C (“the therapist”) for the purposes of therapeutic counselling and the child shall continue to attend on such therapist on such occasions as recommended by the therapist and for such period as recommended by the therapist.

   (7)That the mother and father shall cooperate with all reasonable requests made by the therapist for involvement by either or both of them in providing information to or in attending upon the therapist.

   (8)That leave is granted to the father to provide a copy of the Single Expert Report of Dr D dated 13 October 2017 and these Reasons for Judgment to the therapist.

   (9)That the child spend no time with the mother for a period of four (4) months from the date of these orders and thereafter the child spend time with the mother as follows:

   (a)for a period of three (3) months each Sunday from 10.00 am to 2.00 pm under community-based supervision by a supervision service agreed between the parties in writing or in default of agreement nominated by the Independent Children’s Lawyer and that for the purposes of the mother’s supervised time as provided for above the father shall deliver the child to the supervisor at the commencement of the time the child is to spend with the mother and collect the child from the supervisor at the conclusion of the time the child spends with the mother;

   (b)thereafter for a period of three (3) months each Sunday from 10.00 am to 6.00 pm;

   (c)thereafter for a period of six (6) months each alternate weekend from 10.00 am Saturday to 6.00 pm Sunday;

   (d)from the commencement of weekend overnight time from Saturday to Sunday as provided for in Order (9)(c) above the child shall if not otherwise spending time with the mother spend time with the mother:

   (i) on the Mother’s Day weekend from 10.00 am Saturday to 6.00 pm Sunday;

   (ii)each alternate year commencing on New Year as follows:

   A.if the new year falls on a weekday then from the conclusion of school to the commencement of school the following day;

   B.if the new year falls on a weekend from 10.00 am on that day to the commencement of school the following day or 10.00 am the following day if a non-school day;

   C.in each other year the mother’s time with the child shall be suspended on New Year:

   (a)if the new year falls on a weekday then from the conclusion of school to the commencement of school the following day;

   (b)if the new year falls on a weekend from 10.00 am on that day to the commencement of school the following day or 10.00 am the following day if a non-school day;

   (iii)on the child’s birthday from 3.00 pm to 8.00 pm if the child is not otherwise spending time with the mother and provided that if the child is spending time with the mother such time shall be suspended from 3.00 pm to 8.00 pm;

   (iv)on the mother’s birthday from the conclusion of school to 8.00 pm if a school day or from 10.00 am to 6.00 pm if on a weekend provided always that the child’s time with the mother shall be suspended on the father’s birthday from the conclusion of school to 8.00 pm if a school day or from 10.00 am to 6.00 pm if on a weekend;

   (e)thereafter for a period of three (3) months each alternate weekend during school term from after school Friday to the commencement of school Monday with such time in each new school term to commence on the first weekend after school resumes;

   (f) thereafter each alternate weekend during school term from after school Thursday to the commencement of school Monday with such time in each new school term to commence on the first weekend after school resumes;

   (g) from the commencement of weekend overnight time from Friday to Monday as provided for in (9)(e) above for one week in each mid-year term school holiday period commencing the first week from after school on the day term ends to 6.00 pm on the mid-point Saturday in odd-numbered years and the second week commencing at 6.00 pm on the mid-point Saturday to 5.00 pm on the day before school resumes in even-numbered years from 2020;

   (h)for two weeks in the Christmas school holiday period commencing in 2019/2020 school holidays  as agreed between the parties and in default of agreement from 9.00 am on the first Saturday in January to 6.00 pm on the second Saturday thereafter; and

   (i)at other times as agreed in writing, such writing to include SMS or email communication, between the parties. 

   (10)That as and from the expiration of a period of seven (7) months from the date of these orders the mother may attend events at the child’s school to which parents are normally invited including parent teacher interviews.

   (11)That the mother be and is hereby restrained from attending within 100 metres of the child’s school when the child is in attendance unless, for the purpose of attending an event pursuant to the previous order or at other times as agreed between the parties in writing such writing to include SMS or email communication.

   (12)That the mother be at liberty to communicate with the child’s school and treating health practitioners and for such purposes the father shall do all things necessary to authorise such information to be made available to the mother as she may reasonably request.

   (13)That the mother and father shall notify each other of any serious illness or injury suffered by the child when he is in their respective care with such notification to include the name and location of any treating medical professional and an authority for the treating professional to provide to the other party information on the child’s treatment and prognosis.

   (14)That these Orders are authority for the school that the child attends to provide to the mother copies of all school reports, newsletters, notices of events to which parents are invited and copies of correspondence relating to the child’s education.

   (15)That unless otherwise provided changeovers for the child to spend time with the mother which do not occur at school will take place with the father or his nominee delivering the child to the mother’s nominated residence and the mother or her nominee returning the child to the father’s nominated residence unless otherwise agreed between the parties in writing, such writing to include SMS or email communication.

   (16)That the appointment of the Independent Children’s Lawyer be continued for a period of 12 months from the date of these orders and thereafter the Independent Children’s Lawyer be discharged.

   (17)That any application for costs by the Independent Children’s Lawyer in respect to the proceedings to date be by way of written submission filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days with judgment thereafter reserved to chambers.

   (18)That each party and the Independent Children’s Lawyer has liberty to relist as to enforcement or implementation of these Orders.

4. By reason of the mother and father’s competing residence applications in relation to the subject child, the ICL had a significant role in the proceedings representing the interests of the subject child.

ICL Costs

1. The ICL seeks an order that the parties pay equally the ICL’s costs that are in the sum of $18,097.84 with each party to pay one half of such costs. 

2. In addition to the costs order sought by the ICL, both parties had paid by way of contribution to the ICL costs and the costs relating to the single experts attendance at Court the sum of $5,400.00 each.

3. 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.

4. 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.

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

6. 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.

7. Section 117(5) provides:

   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.

8. 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.

9. 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.

10. 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.

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

12. 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)).

13. Section 117(3) provides:

    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.

14. Section 117(4) provides:

    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.

15. Both parties in these proceedings were privately funded. The mother is in employment. The father has significant means.

16. Whilst the mother was “unsuccessful” in the proceedings in failing to obtain an order for the child to reside with her, there were many issues that required evidence and then judicial determination to get to the ultimate result. The ICL consequently, and appropriately, reserved a position as to final orders until all the evidence was tested at trial. Yet the ultimate orders reflected the recommendations of the Single Expert that had been before the parties for a considerable time prior to trial.

17. The father, in the orders sought by him, impliedly adopted the recommendations of the Single Expert, Dr D.

18. The father has not contended that he will suffer hardship if such an order is made. He contends that the ICL’s costs should be reduced by reason of various items in the ICL Costs Statement.  

19. The mother asserts that there should be no order requiring her to pay any of the ICL’s costs. She asserts no capacity to pay by reason of her financial circumstances. She works part time. No reason is advanced as to why she cannot now obtain full time employment as she has no child in her care. The mother does not contend that she would suffer hardship. A costs order can be made on terms providing for time to pay. Otherwise, either or both parties are still able to make an application to Legal Aid NSW for a waiver in whole or as to part of their liability under any order for costs.

20. The mother also takes issues with some items comprised in the ICL Costs Statement. 

21. It is inappropriate that the ICL be left unfunded to the effect that the burden falls on the public purse where both parties have capacity to meet the ICL’s costs even if on terms.

22. 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.

23. 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”.

24. 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”.

25. 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”…

26. It is appropriate and just that the parties contribute to the ICL’s costs. The sum claimed will be reduced somewhat to reflect the parties’ contentions as to quantum.

27. There will be orders that the parties each pay by way of contribution to the ICL’s costs the sum of $7,500.00.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 September 2018.

Associate: 

Date:  28 September 2018