Hagi & Hagi (No 2)

[2014] FamCA 502

FAMILY COURT OF AUSTRALIA

HAGI & HAGI (NO. 2) [2014] FamCA 502

FAMILY LAW – CHILDREN – application for costs by Independent Children’s Lawyer – consideration of statutory provisions – application successful

Family Law Act 1975 (Cth)

De Roma & De Roma (2013) 49 Fam LR 226
LAC & TRF & LKL [2005] FamCA 158

APPLICANT: Mr Hagi

RESPONDENT: Ms Hagi

INDEPENDENT CHILDREN’S LAWYER: Mr Walkden

FILE NUMBER: SYC 1719 of 2011

DATE DELIVERED: 11 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 24 - 26 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Watkins

SOLICITOR FOR THE APPLICANT: Sage Solicitors

COUNSEL FOR THE RESPONDENT: Mr Wong

SOLICITOR FOR THE RESPONDENT: Taylor & Scott Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Both the husband and wife pay the costs of the Independent Children's Lawyer assessed in the sum of $2,370.25 in respect of each of the parties.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1719 of 2011

Mr Hagi

Applicant

And

Ms Hagi

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. The Independent Children's Lawyer made an oral application at the end of the parenting proceedings seeking orders for costs in the sum of $2,370.25 against each parent. The parties were given notice of this application and a costs notice was tendered and is Exhibit 11.

2. The parties in this matter, with the assistance of the Independent Children’s Lawyer, resolved the majority of the parenting issues during the first day of the final hearing. There were two issues which were unable to be resolved which were heard and determined.

3. Although s 117(1) Family Law Act (the Act) provides that each party to proceedings bear his or her own costs, the Independent Children's Lawyer is not a “party to proceedings” as that expression is used in that subsection.

4. Section 117(2) of the Act allows the court to make an order as to costs as the court considers just. In considering what order (if any) is just, the legislation mandates that the court have regard to those matters set out in s 117(2A) of the Act.

5. All the matters set out in s 117(2A)(a)-(f) of the Act relate to the circumstances and conduct of the parties during the proceedings. Section 117(2A)(a) of the Act mandates the court have regard to “the financial circumstances of each of the parties to the proceedings”. As already indicated, the Independent Children's Lawyer is not a party to the proceedings. However, s 117(2A)(g) of the Act, namely “such other matters as the court considers relevant”, is wide enough to enable the court to take into account matters relating to the Independent Children's Lawyer’s conduct during the proceedings. In the context of an application for costs made by the Independent Children's Lawyer, s 117(2A)(g) of the Act would also be wide enough to allow the court to consider issues relating to the funding of the Independent Children's Lawyer, were it not for s 117(5) of the Act. The effect of s 117(5) is that the Independent Children's Lawyer is to be treated as being impecunious (see De Roma & De Roma (2013) 49 Fam LR 226).

CONSIDERATION OF s 117(2A) FLA MATTERS

1. It is clear from the Full Court’s decision in LAC & TRF & LKL [2005] FamCA 158 that “there is nothing to prevent any one [s 117(2A) FLA] factor being the sole foundation for an order for costs”.

2. The Independent Children’s Lawyer and counsel for each of the parties agreed that the matter was one of high conflict. The matter was fully prepared for the final stage of the defended hearing. Ultimately the parties were able to reach agreement on the majority of issues. It was submitted by counsel for each of the parties that this should mitigate against the order sought by the Independent Children’s Lawyer. The costs sought by the Independent Children's Lawyer are limited to one day of the final stage of the hearing. I infer that the Independent Children's Lawyer played an important role in assisting the parties in their discussions which led to the resolution of the major parenting issues. The Independent Children's Lawyer participated and made submissions in relation to the two remaining issues which required judicial determination on the second day. I find there to be nothing in the conduct of the parties resolving the majority of issues, that would mitigate against them having to pay the costs sought.

3. Counsel for the husband also opposed the Independent Children's Lawyer’s application for a costs order against him on the basis that his financial circumstances were not known. Consequent upon delivery of judgment in the parties’ application for property settlement, they are now known. Orders were made on 3 July 2014 that the husband receive 27.5 per cent of the net assets of the parties, that is, $455,261.  The husband is far from impecunious. Counsel for the husband conceded that in the event that the husband is not found to be impecunious at the end of the matter no submission would be made based on financial circumstance. I conclude that the husband has the financial capacity to make the payment sought by the Independent Children’s Lawyer towards the funding of the Independent Children’s Lawyer’s costs.

4. Counsel for the wife submitted that whilst the order could be met on the face of the wife’s net capital position, her average weekly income did not meet her average weekly expenditure and thus the order could not actually be met. The order sought by the Independent Children’s Lawyer seeks that the wife pay $2,370.25 towards the Independent Children’s Lawyer’s costs. Upon distribution of assets, the wife received $1,200,235 in net assets. I find that she is able to make the payment sought.

5. Neither counsel for either party referred in submissions to any other s 117(2A) of the Act matter, and I find that there is no other matter of any relevance.

6. Neither party has received legal aid in respect of the proceedings. Neither party would suffer financial hardship if that party had to bear a proportion of the costs of the Independent Children's Lawyer. Consequently, s 117(4) of the Act does not operate to preclude the making of the order sought.

CONCLUSION

1. Rightly no submission was made that challenged the reasonableness of the quantum sought by the Independent Children's Lawyer.

2. Having considered the matters to which s 117(2A) of the Act refers, I find only the financial circumstances of each of the parties are matters of weight. As I have said, the Independent Children's Lawyer is to be treated as being unfunded. That being so, I find that it is just to make the order sought by the Independent Children's Lawyer.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 11 July 2014

Associate: 

Date:  11.7.14