Hasek & Thurstan
[2023] FedCFamC1F 647
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hasek & Thurstan [2023] FedCFamC1F 647
File number(s): SYC 7443 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 3 August 2023 Catchwords: FAMILY LAW – COSTS – Where the parties settled the matter by consent on the second day of the final hearing – Where the Independent Children’s Lawyer made an application to the Court for the parties to equally share in the costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer has assisted the parties in facilitating the production of a single expert report – Where there were opportunities for the matter to be resolved prior to the parties incurring additional expenses of a final hearing and prior to the public incurring expense in respect to the Independent Children’s Lawyer – Application granted – Parties to share equally in the costs of the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 67
Nardini & Legal Aid NSW [2019] FamCA 340
Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 2–3 August 2023 Place: Sydney Counsel for the Applicant: Ms Petrie Solicitor for the Applicant: Harris Freidman Lawyers The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Druitt Solicitor for the Independent Children's Lawyer: John Dawson & Associates ORDERS
SYC 7443 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HASEK
Applicant
AND: MR THURSTAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
3 AUGUST 2023
THE COURT ORDERS THAT:
1.BY CONSENT and pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, orders, declarations and notations are made in terms of the document titled "Independent Children's Lawyer Minute of Order" as signed by the parties, the Independent Children's Lawyer and the Court on 3 August 2023 and attached hereunder.
2.Within 26 weeks of the date of these orders, the mother is to pay Legal Aid NSW the sum of $2080.38 in payment of her contribution toward the Independent Children's Lawyer's professional costs. Including, if agreed to by Legal Aid NSW, by way of instalments.
3.Within 26 weeks of the date of these orders, the father is to pay Legal Aid NSW the sum of $2080.38 in payment of his contribution toward the Independent Children's Lawyer's professional costs. Including, if agreed to by Legal Aid NSW, by way of instalments.
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 Hasek & Thurstan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTMCCLELLAND DCJ:
In this matter, the parties have come to a sensible resolution of their dispute in respect to parenting for their child, X (“the child”), who was born 2008.
In broad terms, pursuant to the consent orders, the mother will be permitted to relocate to the United Kingdom with the child and arrangements have been made for the child to maintain regular contact with the father by way of electronic means and also by way of face to face time, both in Australia and in the United Kingdom.
The orders made by the parties, with the assistance of the Independent Children’s Lawyer (“the ICL”), are commendable and the parties are to be congratulated on the approach they have taken.
In accordance with her relevant statutory obligations, the ICL has made an application for costs pursuant to s 117 of the Family Law Act 1975 (Cth). In the matter of Nardini & Legal Aid NSW [2019] FamCA 340, I considered issues relevant to the payment of costs of the ICL and, in particular, I refer to [22]–[27] of that decision, noting that the Family Law Rules 2004 (Cth) have been repealed and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) are now in force:
22.In terms of s 117(2A)(g), it is relevant that the role played by the ICL in parenting proceedings, including in this matter, is invaluable. The role of the ICL was summarised in the context of an application for costs in proceedings before the High Court of Australia in CDJ v VAJ (No 2) (1998) 197 CLR 172. Specifically, at [11], Kirby J said:
The children's representative has a duty to “act in an independent and unfettered way in the best interests of the child”. This duty carries over to an appeal. The interests of the children and their welfare is of concern to the public. Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this court. [References omitted].
23.I accept that it is in the public interest for the best interests of children to be represented in proceedings before this Court and that the Court invariably receives substantial assistance, in that regard, from ICLs appointed in parenting proceedings. Such assistance was undoubtedly provided by the ICL in this case.
24.Also relevant to these proceedings is s 117(5) of the Act, which provides:
(5)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.
25.Accordingly, it is my view that the ICL should be presumed to be unfunded and, having regard to authority, in those circumstances, the Court is generally inclined to order litigants to contribute to the ICL’s costs: Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma [2013] FamCA 566.
26.Further, I note that the ICL has sought an order for costs to be paid by the mother in a lump sum amount. Those costs have been itemised in a schedule provided by the ICL to the Court and the mother at the hearing on 20 May 2019.
27.Pursuant to rule 19.18(1)(a) of the Family Law Rules 2004 (Cth), the Court may make an order for costs of a specific amount. Having regard to the principles adumbrated by Kent J in Stoian & Flemming (Costs) [2014] FamCA 944 at [91], I am satisfied that the costs figure sought by the ICL is logical, fair and reasonable. I will, therefore, make an order for costs in favour of the ICL in the sum of $14,903.70, being 50 per cent of the total costs incurred by the ICL in this matter.
I note that at [22] of that decision, I refer to a decision of Kirby J in the matter of CDJ v VAJ (No 2) (1998) 197 CLR 172 (“CDJ v VAJ”), where his Honour said at [11]:
The children’s representative has a duty to “act in an independent and unfettered way in the best interests of the child”. This duty carries over to an appeal. The interests of the children and their welfare is of concern to the public. Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this court.
(References omitted)
In terms of capacity to pay, I appreciate that the litigation has been a burden to the parties. I also appreciate in the current economic circumstances that there are additional burdens associated with rising interest rates and meeting expenses in an inflationary period. I have also had regard to, in terms of capacity to pay, the fact that the father will be seeking to put aside funds to travel overseas to the United Kingdom.
In terms of the manner in which the proceedings have been conducted, I acknowledge that the proceedings before me were conducted with appropriate focus, respect and courtesy to the Court and each party. Nonetheless, having received the benefit of a single expert report, there were opportunities for this matter to be resolved prior to the parties incurring additional expenses and prior to the public incurring expense in respect to the ICL.
Also relevant is the fact that the parties have been afforded a significant benefit in these proceedings from the assistance of the ICL. For reasons that I have explained above, this is an additional factor that I have considered under s 117(2A)(g) of the Act, by reference to the decision of Kirby J in CDJ v VAJ.
I have had regard to the costs that the parties have incurred and the difficulty they would face in paying the costs within the short space of time. In those circumstances, I do make an order for the parties to share the costs of the ICL, which has been assessed as $4,160.75. This is an extremely modest amount for the quality of the work that has been undertaken and is in accordance with the Legal Aid NSW scale.
The second order is that the parties are to pay that amount to Legal Aid NSW within 26 weeks of the date of these orders, including, if agreed to by Legal Aid NSW, to pay their respective shares by way of instalments.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 15 August 2023
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