Hutchins and Blaney

[2011] FamCA 25

FAMILY COURT OF AUSTRALIA

HUTCHINS & BLANEY [2011] FamCA 25

FAMILY LAW – COSTS – Application by the Independent Children’s Lawyer for the payment of costs of the hearing – financial difficulties experienced by each party – parties to meet certain costs of the Independent Children’s Lawyer with times permitted to pay the amounts ordered

Family Law Act 1975 (Cth)

APPLICANT: Mr Hutchins

RESPONDENT: Ms Blaney

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1793 of 2008

DATE DELIVERED: 20 January 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: Dealt with by written submissions in chambers

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The father is to pay to the Independent Children’s Lawyer the sum of $3,950 as to one-half thereof within six (6) months and as to the balance within twelve (12) months from the date of these Orders.

2. The mother is to pay to the Independent Children’s Lawyer the sum of $7,388 as to one-half thereof within six (6) months from the date of these Orders and as to the balance within twelve (12) months of the date of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Hutchins & Blaney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1793 of 2008

MR HUTCHINS

Applicant

And

MS BLANEY

Respondent

And

LEGAL AID NEW SOUTH WALES

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application by the Independent Children’s Lawyer for orders for costs following parenting proceedings between the mother and father.

2. Those proceedings were concluded by a Judgment delivered on 3 December 2010.  The Judgment set out a regime for shared parenting between the mother and the father in relation to the parties’ one child.

3. The costs assessed by the Independent Children’s Lawyer were $9,592 for professional costs and in relation to disbursements the sum of $5,185.60.  In addition, experts’ reports and fees for the attendance of those experts to give evidence in the proceedings were claimed.  In relation to the preparation of a report by Associate Professor Q and her attendance at Court to give evidence, the amount of $6,050 was claimed.

4. In relation to the costs of Associate Professor Q’s report, Legal Aid NSW paid the sum of $2,750 and the mother paid $2,100.  The father was obliged to pay the sum of $1,000 toward those reports and a report of a Mr K and the Court is informed that the sum remains outstanding.  The Court is further informed that Mr K waived his fees with respect to certain of his attendances at Court and in relation to the preparation of an additional report.  The mother has paid $1,650 as an initial contribution to the Independent Children’s Lawyer’s costs.

5. The Independent Children’s Lawyer seeks orders that the mother pay $5,738.80 payable to Legal Aid NSW, that sum being the balance of one-half of the Independent Children’s Lawyers costs and disbursements.  Also sought is the amount of $1,375 being one-half of the monies paid by Legal Aid NSW towards the report of Associate Professor Q, together with one-half share of the balance due to her for her attendance at the Court amounting to $275.

6. It appears that by a determination of Legal Aid NSW of 25 June 2008 the father’s liability for the costs of the Independent Children’s Lawyer is limited to a one-off contribution in the sum of $1,650.

7. It was noted by the Court on 12 August 2010 that Legal Aid NSW would, in the first instance, provide funding for one-half of the costs of the preparation of the reports and that subject to review, the balance of the fees due to the experts was to be paid as to $1,000 by the father and as to the balance by the mother.  That amount was to be paid within seven days of a request of the Independent Children’s Lawyer.  Legal Aid NSW has paid the sum of $2,750 towards the report of Associate Professor Q and the mother has paid the sum of $2,100.

8. The Independent Children’s Lawyer seeks an order that the father pay the sum of $1,650 by way of contribution to costs and the sum of $925, being the balance due to Associate Professor Q and which represents the balance of the updating report and a one-half share of the fees in attending the Court to give evidence.  The Independent Children’s Lawyer also seeks the sum of $1,375, that being one-half of the monies paid by Legal Aid NSW towards the report of Associate Professor Q.

Section 117 considerations

1. The Court has a broad discretion as to the orders that it makes for costs and that discretion is set out in section 117(2) of the Family Law Act 1975 (“the Act”). In the consideration of the exercise of that discretion I am obliged to consider the matters set out in section 117(2A) of the Act. Those matters are set out in the following sub sections of that section namely:

(a)      the financial circumstances of each of the parties to the proceedings

1. The mother filed a Financial Statement on 24 December 2010 in which she says that her income is estimated at $2,050 per week and that her personal expenditure is in the order of $3,816 per week.   She deposes to having assets of $1,062,000 and superannuation of $111,898.  The mother further sets out the total of her liabilities as being $1,266,000.  Among those liabilities are mortgages on a property at E (“the E property”).  Among the mother’s assets are said to be an interest in the E property, in which the mother claims an 80% share and which is said to have an estimated value of $320,000 but she does also claim as a liability of $1,000,000.  Like other evidence received in the principal proceedings in relation to this case it is somewhat perplexing.  It seems that the mother has stated her net interest in the property as an asset and not her gross interest and yet she has claimed the gross liability as a liability whereas in that case one would not claim the mortgage as a liability having already netted it off the asset.  The father’s interest in the same property, having regard to the valuation of the mother of her net interest would be $80,000.

2. The father says that his financial position is that he has an average income of $800 per week.  He says that his total personal expenditure is in the order of $485.92 per week and that the value of the property owned by him is approximately $181,331 and that he has superannuation of $8,772 and has liabilities of $212,472.

3. However, in the father’s Financial Statement he claims a 20% interest in the E property but is unable to ascribe a value to it.  He also claims a liability in relation to the property at a portion less than his share would indicate might be appropriate as a share of it.  When the matter of the ownership of that asset is resolved in proceedings elsewhere or by agreement it seems likely in any event that the mother will end up with the lion’s share of the property.  It might have been helpful to have some estimate of the current sale value of the property.

(b)      whether any party to the proceedings is in receipt of legal aid and, if so, the terms of the grant of that assistance to that party

1. To the extent that the father’s contributions to the costs of the Independent Children’s Lawyer were limited he effectively received some aid in relation to meeting the costs of those fees.

(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

1. There is nothing in the conduct of the parties to the proceedings in relation to these matters which is particularly notable.

(d)      whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. This does not apply.

(e)      whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. Neither party 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

1. There is no evidence of any such offer.

(g)      such other matters as the Court considers relevant

1. The engagement of the Independent Children’s Lawyer was clearly in the interests of the child in this matter and the conduct of the Independent Children’s Lawyer in the fulfilment of the duties and responsibilities imposed by that role has been to the benefit of the child.  As such the costs of the Independent Children’s Lawyer and the relevant disbursements are seen as costs promoting the child’s welfare, and thereby a form of a cost in relation to the child.

2. As such it is incumbent on parents, to the extent that they are able to do so and in proportion to their means, that they bear those costs.

3. In these proceedings, based on the evidence in the case and the current evidence before me, each of the parties has financial difficulties.  Although on the evidence the mother clearly has a higher income earning capacity than the father, and to a significant extent.  She presently has limited her income and in the present circumstances has devoted more time to her son than in exercising that earning capacity.

4. Nevertheless, it is the Court’s view that each of the parties should make a contribution to the costs sought and in proportion to their capacity to pay.  When the parties resolve the ownership of the property at E it seems more probable than not that there will be funds to meet the order.  Given that each of them is in present financial difficulty, I propose to permit time to pay the amount that I find is appropriately payable having regard to their present financial positions and accordingly make the orders set forth above.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 20 January 2011.

Associate: 

Date:  20 January 2011