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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hasek & Thurstan

Details

AGLC: Hasek & Thurstan [2023] FedCFamC1F 647
Case: [2023] FedCFamC1F 647
Decision Date

CaseChat Overview and Summary

In the case of Hasek & Thurstan, the matter was brought before the Federal Circuit and Family Court of Australia (Division 1) by Ms Hasek, the applicant, and Mr Thurstan, the respondent. The central issue in the case was the resolution of parenting arrangements for their child, X, born in 2008. The Independent Children's Lawyer (ICL) subsequently applied for costs under section 117 of the Family Law Act 1975 (Cth), seeking an order for the parties to equally share the costs of the ICL. The ICL's application was grounded on the premise that the parties had benefited significantly from the ICL's assistance, particularly in facilitating the production of a single expert report, and that there were opportunities for the matter to be resolved prior to the parties incurring additional expenses and the public incurring expenses for the ICL.

The court considered the statutory obligations of the ICL under section 117(2A)(g) of the Family Law Act 1975 (Cth), noting the invaluable role of the ICL in representing the best interests of the child. The court referenced the decision in CDJ v VAJ (No 2) (1998) 197 CLR 172, where Kirby J emphasized that the interests of the children extend beyond and are separate from the interests of the parents, and that the children should share equally the costs of their representation in court. The court also considered the relevance of section 117(5) of the Act, which directs the court to disregard the fact that the ICL is funded under a legal aid scheme. The court recognised the principle that the parties should generally contribute to the ICL's costs when the ICL is presumed to be unfunded, as per the decisions in Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma [2013] FamCA 566.

The court determined that the total costs incurred by the ICL were $14,903.70, of which the ICL sought an order for the mother to pay 50 per cent. The court considered the capacity of the parties to pay, the economic circumstances, and the manner in which the proceedings were conducted. While acknowledging that the litigation had been a burden to the parties, the court found that there were opportunities to resolve the matter prior to incurring additional expenses. The court also recognised the significant benefit the parties received from the ICL's assistance and ordered that the parties share the costs of the ICL equally, amounting to $4,160.75 each, to be paid to Legal Aid NSW within 26 weeks of the date of the order, including, if agreed to by Legal Aid NSW, by way of instalments.

The court's decision reflects a balanced approach to cost orders in family law matters, ensuring that the best interests of the child are prioritised while also considering the financial constraints of the parties. The order aims to distribute the costs fairly between the parties, recognising the valuable role of the ICL in achieving a resolution.

Orders