Horn and Gabin (No 3)
[2011] FamCA 817
•12 October 2011
FAMILY COURT OF AUSTRALIA
| HORN & GABIN (NO 3) | [2011] FamCA 817 |
| FAMILY LAW – COSTS – Independent children's lawyer – Costs application against mother – No capacity to pay – Application dismissed |
FAMILY LAW – COSTS – Independent children's lawyer – Legal Aid Queensland policy concerning ability of party's de facto to contribute to independent children's lawyer's costs – Enforceability – Effect of s 90RD(2) – Relevance of de facto's property in assessing mother's capacity to pay
FAMILY LAW – COSTS – Independent children's lawyer – Interaction of Legal Aid Queensland Guidelines for Commonwealth Matters - Family Law and s 117 – Exercise of judicial discretion independent – Not reflexive of Legal Aid Queensland policy or any Legal Aid Queensland determination
| Family Law Act (1975) (Cth) s 117, s 117(2A), s 90RD Family Law Rules 2004 Rule 8.05 |
| PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF (2005) 33 Fam LR 123; [2005] FamCA 158 Penfold and Penfold (1981) 44 CLR 311 |
Legal Aid Queensland Guidelines for Commonwealth Matters – Family Law
| APPLICANT: | Mr Horn |
| RESPONDENT: | Ms Gabin |
| FILE NUMBER: | BRC | 12027 | of | 2007 |
| DATE DELIVERED: | 12 October 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O’Reilly J |
| HEARING DATE: | 11 October 2011 |
REPRESENTATION
| THE APPLICANT: | No interest in the application |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ashcroft |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dooley Dooley Solicitors |
Orders
IT IS ORDERED
The independent children’s lawyer’s application for costs against the mother filed on 16 June 2011 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Horn & Gabin (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 12027 of 2007
| Mr Horn |
Applicant
And
| Ms Gabin |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the independent children’s lawyer filed 16 June 2011 that the mother pay one half of the independent children’s costs of the proceedings.
The amount sought is one half of $33,630 as at 21 September 2011. It is not clear whether some part of this amount relates to the independent children’s lawyer’s costs application. The proceedings were concluded by a final parenting order made on 19 September 2011. If the application is successful it may be that the independent children’s lawyer will seek also that the mother pay the costs of this application. However presently I am not concerned with that. It is sufficient to observe that one half of the costs of the proceedings may be likely to be of the order of about $17,000.
History of the litigation
The proceedings concerned parenting orders for S born in January 2004 now 7½ years.
The proceedings were the second proceedings concerning S. The first were conducted in the Federal Magistrates Court and concluded in July 2006 with a final order that S live with the mother and spend time with the father as arranged between the parties.
The second proceedings were commenced by the father in October 2007, when S was 3½ years.
The history of orders in the proceedings is as set out in exhibit 10 in the proceedings and summarised in my reasons for judgment 19 September 2011 [30], second bullet-point under the subheading "October 2007". In short, there were six or so interim orders culminating in an interim order made by Spelleken FM on 21 December 2009 after a trial. For reasons which her Honour gave on that date, she was unable to make a final order.
Subsequently, the proceedings were transferred to this Court with a second trial in the proceedings conducted over three days in August 2011, and judgment with a final parenting order 19 September 2011 bringing to an end the second set of proceedings which, as I have said, were commenced by the father.
Power to make a costs order against a party in independent children’s lawyer’s favour
The power to make a costs order against a party in the independent children’s lawyer’s favour is not in doubt.
Section 117(3) Family Law Act (1975) (Cth) (the Act) provides:
117(3) [Court may order payment of independent children's lawyers costs] To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings. However, section 117(4) is also relevant as to whether the court must not order payment of an independent children’s lawyer’s costs. (italics added)
Relevantly, s 117(4) provides:
117(4) [When court must not order payment of independent children's lawyer's costs] However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer. (italics added)
Section 117(5) is also directly relevant. It provides:
117(5) [Funding of independent children's lawyer must be disregarded] 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.
Further, Rule 8.02 Family Law Rules 2004 provides:
RULE 8.02 INDEPENDENT CHILDREN'S LAWYER
…
8.02(2) If the court makes an order for the appointment of an independent children's lawyer:
…
(b)it may order that the costs of the independent children's lawyer be met by a party.
Having drawn attention to parts of s 117, it is convenient now to set it out in full:
SECTION 117 COSTS
117(1) [Party bears own costs] Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
117(2) [Costs order] If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
117(2A) [Matters relevant to costs order] (2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
117(3) [Court may order payment of independent children's lawyers costs] To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings. However, section 117(4) is also relevant as to whether the court must not order payment of an independent children’s lawyer’s costs. (italics added)
117(4) [When court must not order payment of independent children's lawyer's costs] However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer. (italics added)
117(5) [Funding of independent children's lawyer must be disregarded] 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.
The hallmark features of s 117(2) are threefold. First, to make a costs order the Court should identify or form the opinion as to the existence of a justifying circumstance to award costs. Secondly, the order if any is discretionary, save that expressly it is subject to subsections (2A), (4) and (5), subsection (4) being mandatory that a costs order must not be made if, relevantly, the Court considers that a party would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer. Thirdly, if subsection (4) does not apply so as mandatorily to exclude a costs order and there is a justifying circumstance the discretion is to make such a costs order as the court considers just, or, in relation to an independent children's lawyer's costs, by subsection (3) a costs order "in such proportion as the court considers just".
Penfold’s case
Having made these remarks, it is imperative that I refer to Penfold v Penfold (1981) 44 CLR 311 at 315:
It is an accurate description of s117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s117(2). As sub-s(1) is expressed to be subject to sub-s(2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs…..(emphasis added)
The primary s 117(2A) ground relied upon by the independent children's lawyer – mother’s financial circumstances
The primary s 117(2A) ground relied upon by the independent children’s lawyer is s 117(2A)(a), namely the financial circumstances of the mother.
Basically, the independent children’s lawyer’s argument is that the mother has the financial capacity to meet a costs order, and thus one should be made.
The independent children’s lawyer relies also on s 117(2A)(g), that there is no evidence to suggest that a costs order against the mother would adversely impact upon S’s wellbeing or best interests.
Section 117AB
The independent children’s lawyer initially sought also to rely on s 117AB, which provides that if the Court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings the Court must order that party to pay some or all of the costs of another party or other parties.
The basis of invoking s 117AB for a mandatory costs order related to an alleged false statement by the mother in a form dated 18 August 2001 completed by her at the request of the independent children’s lawyer. In that document the mother disclosed one real property owned by Mr Nixon, her partner, whereas searches by the independent children’s lawyer showed two properties in Queensland owned by a (Mr Nixon’s full name), one at Town 12 and one at Town 13. The mother said in her sworn oral evidence yesterday that Mr Nixon, her partner, owns only the Town 12 property and does not and never has owned a property at Town 13. There is no basis to reject the mother’s sworn evidence.
Indeed, after it was given, Mr Ashcroft properly withdrew any reliance on s 117AB.
Although I need not now decide the point, arguably the expression in s 117AB “in the proceedings” means the substantive parenting proceedings. There is no allegation of any false allegation or false statement by the mother in the substantive proceedings.
Relevant case authority
I have mentioned already Penfold’s case.
In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF (2005) 33 Fam LR 123; [2005] FamCA 158 the Full Court was required to consider, in the context of an application below by an independent children’s lawyer that the parents in that case equally pay the independent children’s lawyer’s costs, whether there must be “more than” financial capacity of the parents to meet a costs order: see at [35]-[42]. Their Honours held firmly that there is no prescription that “more than one factor” be present before a costs order can be made, and in particular, there is nothing to prevent “financial circumstances” of the parties being the sole foundation for such a costs order. See at [41]:
…The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subsection (2A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
There is nothing in PBF to suggest that their Honours intended such to relate only to costs applications by independent children’s lawyers against parents.
There is also however nothing in PBF to suggest that in the balancing process relevant to the ultimate exercise of the discretion whilst financial circumstances alone can be the “sole foundation” for a costs order or a “justifying circumstance” for a costs order other relevant factors in s 117(2A) should then be ignored. Indeed, in the balancing process as to what is just, conceivably (hypothetically) a party may well have financial capacity to pay but also for example have been wholly successful in his or her case and not have engaged in any adverse conduct such that ultimately it is considered that a costs order be not just.
In such case however, it would be open to an independent children’s lawyer to argue in relation to s 117(2A)(b) and (g) the “public purse” factor, such that, again hypothetically, even a model litigant parent who has been wholly successful and not engaged in any adverse conduct justly should pay the costs of or half the costs of the Court ordered legal representation for the child or children the subject of the proceedings.
Fortunately, as will be seen, in this particular case I need not balance the public purse factor as against the model litigant parent, as I have concluded that the mother’s financial circumstances are not a justifying circumstance to make a costs order against her, and indeed, that her financial circumstances are such that s 117(4)(b) operates; and further that there are no other s 117(2A) matters in this case capable of amounting to a justifying circumstance.
I will turn now to the Legal Aid Queensland Guidelines for Commonwealth Matters – Family Law, in particular as to their relevance, if at all, to exercise of the discretion under s 117.
Legal Aid Queensland Guidelines for Commonwealth Matters – Family Law – relevance to discretion under s 117
The Legal Aid Queensland Guidelines for Commonwealth Matters – Family Law provide:
Guideline 3 - Independent representation of children
…
3.2 Payment for the costs of independent representation by a party not receiving legal assistance
(1) If the Commission makes a Grant of Legal Assistance for an independent children’s lawyer the Commission must give consideration as to the ability of the parties to the proceedings to:
(a) contribute to the costs associated with a single expert report
(b) contribute to the costs and disbursements associated with the Grant of Legal Assistance for the independent children’s lawyer.
(2) The Commission may determine an amount to be paid by each party taking into account:
(a) The party’s capacity to pay
(b) The party’s legally aided status
(c) Contributions assessed on existing files.
(3) Taking into account that the parties are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report (Family Law Rules, R15.47) ordinarily, if a party is unaided, they will be required to contribute to an equal portion of the cost of the single expert.
(4) Guideline 3.2(1) does not apply to proceedings relating to special medical procedures involving a child in which a Grant of Legal Assistance for independent representation of the child has been made, regardless of whether or not any of the parties to the proceedings are receiving legal assistance under a Grant of Legal Assistance.
(5) If a party refuses or fails to pay the amount required by the Commission under this guideline 3.2, legal assistance for the independent children's lawyer should continue to be provided on the condition that the independent children's lawyer in appropriate circumstances seek an order for costs against that party at an appropriate time in the court proceedings. (emphasis added)
Undeniably, the Legal Aid Queensland Guidelines reflect sound policy.
The structure of the Guidelines is such that, if a party who by a determination is assessed to contribute does not contribute, Legal Aid Queensland has no enforcement powers, but the independent children’s lawyer is required by the Guidelines "in appropriate circumstances" to apply to the Court, in the proceedings, for a costs order against the party the subject of the determination.
If a costs order is sought by an independent children’s lawyer however there can be no suggestion of mere reflexive action by the Court to administer or give effect to the Guidelines. That is not the Court's function. Rather, once a costs application is made by an independent children’s lawyer, even if mandatorily made under the Guidelines as a "condition” of continuation of funding (Guideline 3.2(5)), the policy is at that stage exhausted. The ultimate exercise of discretion by the Court must be in accordance with the matters I have mentioned and, as I have said, is by no means reflexive. As is well understood, the judicial system is independent.
There is thus no “magic” in a Legal Aid Queensland determination. Whilst an independent children’s lawyer may be required to make a costs application, when it is made, the Court must decide the matter, within the ambit of s 117 as already discussed.
Legal Aid Queensland policy – Relevance of spouse’s or de facto partner’s financial circumstances – Relevance of that to s 117 – Enforceability of any costs order
Before turning to the s 117(2A) matters, I need to deal with the evidence, and Mr Ashcroft’s submissions, concerning the policy of Legal Aid Queensland in relation to Guideline 3.2(1) and (2).
As I understand the evidence, and Mr Ashcroft’s submissions, it is incumbent upon Legal Aid Queensland, as with other Government agencies, eg Centrelink, to assess a party’s capacity to pay a contribution not only on the basis of the party’s own financial circumstances but also the financial circumstances of a party’s spouse or de facto partner.
Thus, in this particular case, Legal Aid Queensland was obliged, in the performance of its function under Guideline 3.2(1) and (2) to take into account the financial circumstances of Mr Nixon, the mother’s de facto partner.
However, in the independent children’s lawyer’s application for costs against the mother, whilst her financial circumstances properly include consideration of those "at large" including in relation to any financial assistance she may receive from Mr Nixon and, as is relevant in this particular case, financial assistance also which she has received for her own legal fees from a Mr Z, whom she regards as her stepfather, it is plain that the costs order the independent children’s lawyer seeks is not against either Mr Nixon or Mr Z, but against the mother.
Thus when I turn to consider the mother’s financial circumstances in relation to a potential costs order against her, I need to consider the enforceability of any order against her.
Plainly, the Court does not make any order, including any costs order, incapable of enforcement.
Mr Ashcroft properly conceded this.
The de facto legislation
The mother and Mr Nixon are in a de facto relationship, and have been since about mid or late 2006.
Mr Ashcroft properly conceded that, in relation to Part VIIIAB of the Act, s 90RD(2) has effect that, absent a declaration by the Court as to the existence of a de facto relationship between the mother and Mr Nixon, there can be no recognition by me of any property rights of the mother concerning Mr Nixon’s property.
Further, Mr Ashcroft properly conceded that, for the purpose of s 90RD(2)(c), absent any evidence that the mother contributed to any of Mr Nixon’s property, I cannot make any finding that she so contributed.
Mr Ashcroft’s written submissions, par 15, initially were to the effect that there is a “possibility” of “available equity” of the mother in Mr Nixon’s property.
However, subsequently his proper concessions negate this submission for practical purposes.
Thus, when considering the mother’s financial circumstances, it is against the background of Mr Ashcroft’s proper concessions.
I will turn now, immediately, to the s 117(2A) matters.
Section 117(2A)(a)
The mother is 27 years. As mentioned in my reasons for judgment 19 September 2011 she was a “street kid” in Sydney: [51] and [62]. She had the good fortune to meet Mr Z, who cared for her such that he became her father figure. They have had a father/daughter relationship since, so that the mother regards Mr Z as her stepfather.
In relation to the parenting proceedings culminating in my final parenting order made on 19 September 2011 Mr Z provided the mother with $20,000 towards the costs of her legal representation.
Throughout the proceedings, the mother represented herself at times because she could not afford legal representation prior to Mr Z’s contribution to her.
At one stage she was represented by Schultz Toomey O’Brien, however, she still owes that firm $400. That amount has been outstanding since about 2008 or 2009 according to the mother’s oral evidence given yesterday.
In relation to the trial I conducted in August 2011, when the mother was represented by Pippa Colman & Associates, the mother said in her oral evidence yesterday that after Mr Z’s $20,000 was exhausted, she became and remains liable to Pippa Colman & Associates for about $1000-2000, which she is paying off at $100 per fortnight, although “for the last fortnight” she missed the payment because she could not afford to pay it.
The mother’s financial statement filed 12 August 2011 shows that her total assets are $1309, comprising a motor vehicle worth about $1000, household contents about $300 and $9 in a bank account.
Her liabilities include a debt of $6000 to Centrelink caused by an overpayment. The mother pays this off at $25 per week. Her income is $163 per week, comprising Government benefits, Family Tax Benefit A and B. She receives assessed child support from S’s father, Mr Horn, of about $56 per week.
The mother and Mr Nixon live in rented premises at Town 3, $470 per week, for which the mother’s share is $235 per week.
I would refer to the reasons for judgment 19 September 2011 [22]-[24] as to the mother’s circumstances generally. She and Mr Nixon rent the premises at town 3 where they are living, comprising the mother, Mr Nixon, S 7½ years and Y 3½ years, her child with Mr Nixon. Mr Nixon has 2 children, M and L, who spend time with the mother and Mr Nixon from each Saturday until before school each Tuesday. The 4 children attend school at Town 3.
Mr Nixon has a hospitality business at Town 3 which is not doing well: reasons for judgment [137].
Mr Nixon owns a property at Town 12, as I have mentioned. His equity in that property, according to the mother’s disclosure to Legal Aid Queensland, is about $90,000.
The mother works in Mr Nixon’s hospitality business on Saturdays: reasons for judgment [137]. However, as I understand her evidence, she is not drawing wages.
The mother’s evidence according to her affidavit filed on 12 August 2011 in respect of the independent children’s lawyer’s costs application is that since S was born in 2004 she has not been employed for wages: see par 6.
The mother is primarily responsible for the care of S and Y, assists with the care of M and L between Saturdays and Tuesdays, and assists Mr Nixon in the hospitality business by working on Saturdays.
The mother said in her affidavit filed 12 August 2011 as to Mr Nixon’s hospitality business:
9.Since being in a relationship with [Mr Nixon], I have helped at the [business] from time to time involving a few hours a week mainly to give [Mr Nixon] a break or to fill in where one of the staff was away. The business has struggled for the past 12 months or so with the general economy on the Sunshine Coast and the effects of the flooding and general poor weather conditions over a long period of time.
10.In April this year, a long term staff member of the [business] left and it was decided not to replace her in the business. I am now doing more hours per week than before but I do not receive a wage from the business. [Mr Nixon] and I have made a decision to try and "tough out" the current difficult times in the hope the business will improve in the future. The business does not have the capacity to pay full time wages for staff and only one casual employee is now employed and that is on a Sunday only to give us a break.
11.I am in receipt of Centrelink benefits and attached to this letter and marked with the letter "A" is a true copy of a statement from Centrelink for the period May 2011 to the present.
12.The statement from Centrelink indicates a combined income figure of $37,193.00 and that is the estimate of income for the business adopted by Centrelink. The income of the business is accordingly taken into account in relation to Centrelink benefits.
13.The statement also indicates there is a debt repayment to Centrelink of $50.00 per fortnight. This is a $6,000.00 debt relating to an overpayment received from Centrelink as a result of a prior estimate for the income of the business being incorrect when final figures were provided to Centrelink. The incorrect estimate resulted in an overpayment during that particular year and that overpayment is being repaid at $50.00 per fortnight.
14.I do not own any assets apart from my motor vehicle which is a [early 1990s Toyota] and a limited amount of furniture.
15.I do not have the capacity to contribute to the costs of Legal Aid in funding the costs of the Independent Children's Lawyer in this matter.
In my view, the mother amply has demonstrated that her financial circumstances are such that she does not have the capacity to meet a costs order.
I have referred already to the circumstance that Mr Z’s assistance for the mother’s own legal fees has been exhausted, such that she has represented herself on this application.
I have referred also to the circumstance that, even if Mr Nixon, her de facto partner, has equity of $90,000 in a property, the effect of s 90RD is that, realistically, I cannot take that into account, at least as to any enforceability of a costs order against the mother.
Mr Ashcroft initially asked me to infer that the mother might have contributed to Mr Niixon’s property, and thus may have some equity in it. However, in my view, on the evidence, such is a long bow to draw, given the mother’s evidence to which I have just referred, which I accept, in particular, that since S’s birth she has not worked for wages. On this evidence, it is nigh impossible to consider that the mother has contributed to Mr Nixon’s Town 12 property.
Moreover, even if she had, there are Mr Ashcroft’s concessions concerning s 90RD to which I have referred. It is impossible to conclude, on all of the evidence, that the mother’s financial circumstances are such that she has the capacity to pay a costs order.
Section 117(2A)(b)
Plainly, the independent children’s lawyer was funded by Legal Aid Queensland.
Neither the mother nor the father was funded by Legal Aid Queensland.
The mother said in her evidence that she was not funded by Legal Aid Queensland because of Mr Nixon’s ownership of property and ownership of the hospitality business.
Section 117(2A)(c)
The independent children’s lawyer made no allegations in relation to the mother’s conduct in the substantive proceedings. The mother was the respondent in the proceedings, Mr Horn, the father, being the applicant.
The independent children’s lawyer supported the mother’s position at the trial throughout the whole of the proceedings.
Section 117(2A)(d)
Although in the proceedings the father alleged failure of the mother to comply with Spelleken FM's interim orders, I made no findings against the mother in this regard, the allegations being cogently explicable by reference to her evidence.
Section 117(2A)(e)
The mother was wholly successful in the proceedings. The father, who commenced the proceedings, was wholly unsuccessful: reasons for judgment [6]-[13]. Her position at all times was supported by the independent children’s lawyer.
Whilst it is true that the mother sought two findings which I did not make, they are inconsequential: reasons for judgment [117]; cf however the findings the mother sought which were made: reasons for judgment [113];[116].
Also, whilst the mother initially sought in relation to parental responsibility that she not be obliged to consult with the father before making decisions, she yielded to this: reasons for judgment [11];[129].
In respect of the two principal matters in issue, the mother was wholly successful and the father wholly unsuccessful: reasons for judgment [135]-[147];[166];[187].
Section 117(2A)(f)
No offers in writing were made.
Section 117(2A)(g)
I have referred to Mr Ashcroft’s submission that a costs order against the mother would not impact adversely on S’s best interests.
I have referred to the public purse considerations.
Further, there is no doubt that the independent children’s lawyer and her Counsel, Mr Ashcroft, have performed their respective roles impeccably well, indeed, in exemplary fashion.
Conclusion
I find that the mother’s financial circumstances are such that she does not have the capacity to pay a costs order in favour of the independent children’s lawyer, either as to $17,000 or any lesser amount.
I need only refer to my analysis of her financial circumstances, which makes this conclusion self evident.
The mother’s financial circumstances thus are not a justifying circumstance to be the foundation for a costs order against her.
Moreover, all other relevant s 117(2A) matters favour her, as explained.
Further, the mother’s financial circumstances, I conclude, have the effect that s 117(4) operates, such that I must not order costs against her, as plainly such would cause her financial hardship further than that to which she is already subject.
Even if that were not so, so that my discretion could operate, there is no justifying circumstance to award costs against the mother.
Even if that were not so, the Court does not make futile orders. Any costs order against the mother would be futile, as unenforceable, given her financial circumstances.
The result
The independent children’s lawyer’s application for costs against the mother filed 16 June 2011 will be dismissed.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 12 October 2011.
Associate:
Date: 26 October 2011
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