Independent Children’s Lawyer and Grainger and Anor

[2019] FamCA 224

FAMILY COURT OF AUSTRALIA

INDEPENDENT CHILDREN’S LAWYER & GRAINGER AND ANOR [2019] FamCA 224

FAMILY LAW – COSTS – Application for costs by the Independent Children’s Lawyer – application dismissed.

Family Law Act 1975
APPLICANT:	Independent Children’s Lawyer

FIRST RESPONDENT: Ms Grainger

SECOND RESPONDENT: Mr Grainger

FILE NUMBER: SYC 8552 of 2015

DATE DELIVERED: 15 April 2019

PLACE DELIVERED: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: By written submissions

REPRESENTATION

INDEPENDENT CHILDREN’S LAWYER: Mr D Holmes, KD Holmes Solicitors

FOR THE APPLICANT: Self-represented

FOR THE RESPONDENT: Self-represented

Orders

1. That the Application in a Case filed 19 February 2019 be dismissed.

2. That there be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Independent Children’s Lawyer & Grainger and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 8552 of 2015

Independent Children’s Lawyer

Applicant

And

Ms Grainger

First Respondent

And

Mr Grainger

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 11 February 2019, I delivered Reasons for Judgment in a parenting dispute between the Applicant mother Ms Grainger and the Respondent father Mr Grainger.

2. In those proceedings the child L was represented by Mr Duncan Holmes as the Independent Children’s Lawyer (“ICL”).

3. Although I am aware that the orders are the subject of an Appeal, the Application in a Case filed by the ICL on 19 February 2019 seeking an order for costs should, in my view, still be determined.

4. An order in chambers made 7 March 2019 directing written submissions to be filed was made, and subsequently the Court has received and has considered those submissions.

5. The ICL seeks an order that each parent “pay one half of the costs of the Independent Children’s Lawyer” with the total sum fixed at $10,923.

6. The father by a Response filed 6 March 2019 supported by an Affidavit seeks an order that the mother pay “the whole of the ICL’s costs” and that otherwise the Application of the ICL be dismissed.

7. The mother by a Response filed 4 April 2019 seeks that the Application of the ICL be dismissed.

8. It is to be acknowledged that I am not dealing with an application for costs by the mother against the father or the father against the mother.  The ICL has a statutory obligation under New South Wales law to press, in most cases, for an order for costs.  The effect of such an order is, if satisfied, to partly replenish the resources of the Legal Aid Commission so that the funds may be used to assist other children or families.  There is a clear public interest in such orders, if made, being complied with by parents.  If an order is made, it is a matter of course for the Legal Aid Commission to determine what steps to enforce payment they may wish to take.

9. As my Reasons make clear, the proceedings were complicated and protracted.  The costs of the ICL are likely to well exceed the amount claimed of only $10,923.  The hearing was conducted by the ICL personally rather than briefing independent Counsel - another cost saving.

10. I am satisfied that the parties are of modest means, although, of course a resolution of the enforcement of the property orders remain an issue.  The emotional cost, if not financial costs, of this protracted litigation have been immense for both the mother and the father.  No useful purpose is served in repeating findings already made about parental behaviour in my Reasons for Judgment.

11. I am not satisfied that the circumstances of this litigation, and even though to a degree the ICL has been required to undertake significant work because of the intractable conflict between the parents, (with the ICL at times being “in the middle”) justify an order for costs.

12. As a result, I dismiss the Application by the ICL.  In such circumstances, there is no basis to consider the father’s application that the mother pay all the costs of the ICL.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 15 April 2019.

Associate: 

Date:  15 April 2019