Horban & Horban
[2023] FedCFamC1F 381
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Horban & Horban [2023] FedCFamC1F 381
File number(s): SYC 4946 of 2020 Judgment of: BERMAN J Date of judgment: 17 May 2023 Catchwords: FAMILY LAW – COSTS – Circumstances justifying order – Where the ICL seeks an order for costs – Where the quantum of costs is not opposed – Where the father does not seek to be heard in relation to his half share – Where the mother opposes her half share – Consideration of whether the order would place the mother in considerable financial hardship – Consideration of s 117 of the Act and s 105 of the Act – Orders. Legislation: Family Law Act 1975 (Cth) ss 105, 117(2A), 117(3), 117(4) Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 7 March 2023 Place: Heard in Sydney, delivered in Adelaide Counsel for the Applicant: Mr Tees Solicitor for the Applicant: AAT Legal Counsel for the Respondent: The respondent appearing self-represented Counsel for the Independent Children's Lawyer: Mr Lawrence Solicitor for the Independent Children's Lawyer: G & D Lawyers ORDERS
SYC 4946 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HORBAN
Applicant
AND: MR HORBAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
17 may 2023
THE COURT ORDERS THAT:
1.Mr Horban, do pay his one half share of the costs of the Independent Children’s Lawyer (“ICL”), anticipated to be a total of not more than $15,000, within thirty (30) days of any request made.
2.The application of the ICL for costs against Ms Horban be dismissed with no order as to costs.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Horban (“the mother”) and Mr Horban (“the father”) are the parents of X born 2007 and Y born 2013 (collectively “the children”).
The parties commenced their relationship in 2003, were married in 2006 and separated in either February 2017 or January 2018.
Following separation, the parties shared the care of the children however, in February 2020, X ceased spending time with the mother and following an incident in July 2020, the father ceased Y’s time with the mother.
The proceedings were commenced by the mother on 17 August 2020 with a Further Amended Initiating Application filed on 3 March 2023.
The father alleged that the children were at risk as a result of the significant mental health issues experienced by the mother. For her part, the mother denies that she suffers from any mental health diagnosis that would impact upon her ability to care for the child. She asserted that the removal of the children from her care and control by the father and the denial of the ability to communicate was evidence of the father’s coercive and controlling behaviour.
The complexity arising from the presentation of each of the parties, their interaction with each other and the manner in which the children were able to relate to each of their parents, necessitated the appointment of an Independent Children’s Lawyer (“ICL”).
At the commencement of the proceedings the ICL proposed extensive orders that provided for the children to live with the father and for Y and X, at her election, to spend time with the mother increasing in duration over a period of six months.
Whilst the ICL relied upon the Family Report prepared by Court Child Expert Ms B dated 9 December 2022, the Court file reflects significant activity by the ICL in causing the issue of a raft of subpoena.
The final hearing commenced on 6 March 2023 and on 7 March 2023 the parties were able to reach agreement in terms of a Minute of Order which broadly followed the proposed orders sought by the ICL.
The final orders also provided for the appointment of the ICL to be discharged.
At the conclusion of the hearing the ICL made an oral application for costs for a sum not greater than $15,000.
The order sought by the ICL was that each of the parties pay one half of the total costs incurred.
The father did not speak against the order. The mother opposed the order for costs on the basis that if required to pay, she would suffer considerable financial hardship.
An Order was made on 7 March 2023 that required the mother to prepare a Financial Statement setting out her income, assets and liabilities. The Order provided for the ICL to prepare a short summary of argument within 7 days of receiving the mother’s Financial Statement.
The question to be considered is whether the mother would suffer financial hardship if ordered to pay one half of the ICL’s costs.
HOW SHOULD THE ICLS’S COSTS APPLICATION BE DETERMINED?
I have regard to the provisions of s 117(3) and (4) of the Family Law Act 1975 (Cth) (“the Act”). A determination as to whether a costs order should be made is to be determined by the application the provisions of s 117(2A) of the Act.
Accordingly, it is necessary to consider the financial circumstances of the mother to ascertain the extent to which the orders, as sought by the ICL, would create hardship.
By reference to the mother’s Financial Statement filed 10 March 2023, the mother is employed in hospitality and also as a coach. Her average weekly income is in the total sum of $990 with personal expenditure of $628.50.
The mother’s weekly income from her hospitality work is in the sum of $650 with a further $310 by way of jobseeker benefit and $30 from her occupation as a coach.
The mother’s expenses are reasonable and indeed somewhat modest in terms of her rental commitment of $250 per week. It could not be said that the mother’s Part N expenses are in any way excessive.
While I accept that the broad principle is that a costs order sought by the ICL should usually be considered favourably, if the orders sought would place the mother in significant hardship then pursuant to s 117(4) of the Act the order should not be made.
I consider that if the mother was required to pay her share of the costs of the ICL it would be an order that would place her in a position of impecuniosity.
Given the circumstances of the proceedings and the deleterious effect that it has had on the parties, I do not consider that the possibility of subsequent enforcement proceedings would have utility.
In addition to a consideration of s 117(4) of the Act, I also consider that s 105 of the Act enables the Court to exercise a discretion not to enforce an order or decree made.
I consider that the father should pay his half share of the costs of the ICL but that I should exercise my discretion and find that to require the mother to pay her share would cause significant hardship and have the potential to adversely affect the interests of the children.
I make orders as appear at the commencement of these reasons.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 17 May 2023
0
0
0