FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hamada & Falzone [2024] FedCFamC2F 1227
File number(s): SYC 4355 of 2022 Judgment of: JUDGE STREET Date of judgment: 3 September 2024 Catchwords: FAMILY LAW – ICL Costs – financial hardship – ICL’s request for costs against the mother dismissed Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 6 Date of hearing: 3 September 2024 Place: Sydney Solicitor for the Applicant: Mr A Maroulis Counsel for the Respondent: Ms A Wallace Solicitor for the Respondent: JB Solicitors Counsel for the Independent Children's Lawyer: Mr T Gabrial Solicitor for the Independent Children's Lawyer: JWP Lawyers ORDERS
SYC 4355 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HAMADA
Applicant
AND: MS FALZONE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The applicant father pay the ICL’s costs fixed in the sum of $2,119.50.
2.The ICL’s request for costs against the respondent mother 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).
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are parenting proceedings in respect of which the parties have been able to successfully agree upon final orders. The ICL has asked for a costs order against the respondent mother (“the mother”) in the sum of $2,119.50.
Ms Wallace, on behalf of the mother identified the limited financial circumstances which the mother has, and that she would suffer hardship by reason of being required to pay the amount being sought. Reference was made to the mother having to pull her child out of extracurricular lessons due to the cost incurred already in respect of these proceedings.
The Court has taken into account each of the factors under section 117(2A) of the Family Law Act 1975 (Cth). The Court accepts the submissions of Ms Wallace that the financial circumstances of the mother were against the making of a costs order. The Court is not satisfied that there are circumstances justifying the Court making a costs order.
In the present case, the Court is satisfied that it is just that no order as to costs should be made in favour of the ICL in respect of the claim by the mother.
Accordingly, the Court makes no order for costs by the ICL against the respondent mother.
It is for these reasons the Court makes the above orders.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 3 September 2024
- AGLC
- Hamada & Falzone [2024] FedCFamC2F 1227
- Case
- [2024] FedCFamC2F 1227
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the mother’s financial hardship was genuine and whether it justified the dismissal of the ICL's request for costs against her. The court examined the mother's financial circumstances, her ability to pay the costs, and the necessity of the ICL's involvement in the proceedings. The court was also required to consider the statutory framework under which the ICL operates, including the provisions for cost recovery and the principles of fairness and justice in family law proceedings.
In its judgment, the court noted that the mother's financial hardship was not sufficiently substantiated to warrant the dismissal of the ICL's costs. The court acknowledged the mother’s financial difficulties but determined that they did not absolve her of the obligation to contribute to the costs of the ICL. The court found that the mother had not provided adequate evidence to support her claims of financial hardship, and therefore, dismissed the ICL's request for costs against her. The father, however, was ordered to pay the ICL's costs in the sum of $2,119.50.
The court's orders reflect a balanced approach to the financial responsibilities of the parties involved in family law disputes. By dismissing the ICL's request for costs against the mother and ordering the father to pay the ICL's costs, the court demonstrated its commitment to ensuring that legal processes do not unduly burden financially disadvantaged parties while also upholding the necessity for the ICL to be adequately compensated for their services.
Orders
Orders of the court
SYC 4355 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HAMADA
Applicant
AND:
MS FALZONE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 SEPTEMBER 2024
THE COURT ORDERS THAT:
1. The applicant father pay the ICL’s costs fixed in the sum of $2,119.50.
2. The ICL’s request for costs against the respondent mother 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).
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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