Independent Children’s Lawyer and Johal

[2019] FamCA 65

FAMILY COURT OF AUSTRALIA

INDEPENDENT CHILDREN’S LAWYER & JOHAL [2019] FamCA 65

FAMILY LAW – COSTS – Application by Independent Children's Lawyer for costs – Where the Court finds that the father’s evidence is insufficient to establish that he would experience financial hardship if he were to be required to meet that cost – Where the Court finds that the public interest supports an order being made for the payment of the Independent Children’s Lawyer’s costs – Application granted.

Family Law Act 1975 (Cth) s. 117
Family Law Rules 2004 (Cth) r. 19.18(1)(a)

CDJ v VAJ (No 2) (1998) 197 CLR 172
De Roma & De Roma [2013] FamCA 566
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Gahen & Gahen (No 2) [2013] FamCA 936
Stoian & Flemming (Costs) [2014] FamCA 944

APPLICANT: Independent Children’s Lawyer

RESPONDENT: Mr Johal

FILE NUMBER: SYC 6668 of 2016

DATE DELIVERED: 1 February 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 1 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Independent Children’s Lawyer

SOLICITOR FOR THE RESPONDENT: El Baba Lawyers

Orders

1. The father pay one half of the costs of the Independent Children’s Lawyer’s costs in these proceedings.

2. The sum of the costs order payable by the father as above be fixed in the sum of $4,175.

3. The father have six (6) months to pay that sum to the Legal Aid Commission of New South Wales.

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 & Johal 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 SYDNEY

FILE NUMBER: SYC 6668 of 2016

Independent Children’s Lawyer

Applicant

And

Mr Johal

Respondent

EX TEMPORE JUDGMENT

1. In this matter, the Independent Children's Lawyer (“ICL”) seeks to recover 50 per cent of their costs incurred in these proceedings from the father, in the sum of $4,175.  The specific orders sought by the ICL are, as follows:

   1. Order that the father pay one half of the costs of the Independent Children’s Lawyer’s costs in these proceedings.

   2. That the sum of the costs order payable by the father as above be fixed in the sum of $4,175.

   3. That the father have 2 months to pay that sum to the Legal Aid Commission of New South Wales, or such further or other time as determined by the Court.

   4. In the alternative to order 2, that the costs payable be as agreed between the parties or in default of agreement as assessed.

2. The substantive proceedings involved the youngest child of the parties, Ms Ayalla (“the mother”) and Mr Johal (“the father”), X, born in 2013 (“the child”).  The parties’ other three children are all over the age of 18 years. 

3. The proceedings were discontinued in tragic circumstances, after the mother died as a result of fatal injuries she sustained from an accident involving a motor vehicle.  Accordingly, there has been no final determination of the merits of the parties’ respective contentions.  The matter was twice listed for interim hearing, which did not proceed as a result of the parties settling the relevant issues by consent.  The ICL was not appointed at the time of the first interim hearing, he did incur costs in respect of preparation and attendance at the second interim hearing.  Further costs were incurred as a result of the ICL arranging and attending a mediation that subsequently occurred.

4. The father opposes the costs application of the ICL for reasons set out in written submissions prepared by his solicitor, who, to her credit, prepared the same and has appeared today on a “pro bono” basis.

5. The thrust of those submissions is succinctly summarised in their conclusion, as follows:

   • The Respondent Father has limited financial means and thus faces significant financial hardship in meeting his weekly expenses and supporting the Child.

   • In the event a costs Order is made, the Respondent Father would suffer further financial hardship. In such circumstances the Court must not make such an Order pursuant to section 117(4) of the Family Law Act 1975 (Cth).

   • The Independent Children’s Lawyer is not required to seek a costs Order against the Respondent Father, and the present circumstances are such that such an Order should not be pursued.

6. I accept the merits of the third submission, that the ICL is not required to seek an order for costs.  However, the ICL is certainly entitled to seek an order for costs and the reality is that the ICL is seeking such an order in these proceedings. 

7. The relevant evidence of the father, regarding his financial circumstances, is set out at paragraphs 9 through to 21 of his Affidavit filed on 30 January 2019, as follows:

   FINANCIAL HARDSHIP

   9. I am currently self-employed as a … Driver. This job allows me the flexibility to work the days and times I want so that I can care for [the child]. I often work 5 nights a week. The vehicle I drive … is leased for an amount of $375 per week.  Annexed hereto and marked with the letter "B" is a copy of the lease agreement.

   10. I am currently earning on average approximately $1500.00 per week before tax and expenses. This fluctuates from week to week due to the nature of the job.  Annexed hereto and marked with the letter "C" is a copy of my … Earnings Statement dated 24 January 2019.

   11. My ability to work has been significantly limited as a result of taking on full time care of [the child].

   12. I am currently renting an apartment in [Suburb B] with my son [Mr C]. I pay $1040.00 rent each fortnight.  Annexed hereto and marked with the letter "D" is a copy of my Residential Tenancy Agreement.

   13. I am currently struggling to meet the basic expenses for myself and [the child].

   14. [The child] has commenced kindergarten this week at [Suburb B] Public School. I am now solely responsible for paying all his school fees and associated expenses including his uniform and basic school needs.  Annexed hereto and marked with the letter "E" is a copy of the receipt for [the child's] uniform.

   15. I calculate my expenses monthly and find that at the end of each month I have a nominal amount of money left for myself and [the child]. In December I was only left with $26.00 at the end of the month.  Annexed hereto and marked with the letter "F" is a copy of my most recent monthly budget spreadsheet.

   16. I currently do not own any property and do not have significant assets. I estimate the value of the contents of my home is $3000.

   17. I do not have any savings and am unable pay the Independent Children's Lawyers costs.  Annexed hereto and marked with the letter "G" is a copy of my Visa Debit account for the period from 31 December 2018 to 24 January 2019.

   18. I have been struggling to meet my legal fees throughout the proceedings. My solicitor has significantly reduced the fees for me and has allowed me to make payment over time through a payment plan due to the financial hardship I face.

   19. My finances are limited to the extent that my Children and I could not afford to pay for the Applicant Mother's funeral expenses. The Children and I were left to meet these expenses as no other maternal family members of the Applicant Mother were willing to assist in paying the funeral costs.

   20. I expressed these concerns to [Ms D], director of "[E Group]" who assisted me in creating a Go Fund Me page to raise funds for the funeral. Go Fund Me is an organisation where individuals can create donation pages for particular causes. This page was promoted via Facebook.  Annexed hereto and marked with the letter "H" is a screenshot of the Go Fund Me page.

   21. I am constantly under significant financial stress and am worried about how I will meet my week to week expenses. I always make sure not to allow [the child] to see that I am concerned about our finances and focus on providing for him the best I can.

8. Section 117(1) of the Family Law Act1975 (Cth) (“the Act”) provides that, subject to certain qualifications, each party to the proceedings shall bear his or her own costs. However, this does not apply to the ICL because the ICL is not a party to the proceedings.

9. In that regard, ss 117(3) and (4) set out the following:

   (3)  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.

   (4)  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.

10. In this matter, it is acknowledged that the father is not legally aided.  As will be discussed, the real question is whether the father would suffer financial hardship if the costs order sought by the ICL was made against him. 

11. Having noted that the presumption set out in s 117(1) does not apply, it is necessary to consider whether a costs order is justified, having regard to s 117(2) of the Act, which provides:

    (2)  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), (4A), (5) and (6) 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.

12. The matters relevant to determining what order, if any, should be made for costs are set out in s 117(2A) of the Act, as follows:

    (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.

13. It is incumbent upon the Court, in the exercise of its discretion, to consider and apply those provisions set out in s 117(2A). However, there is nothing to prevent any factor being the sole foundation for any order for costs being made: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at 130.

14. I have considered each of those paragraphs and have determined that the factors most relevant to my decision are those set out at (a) and (g). 

15. In terms of s 117(2A)(g), it is relevant that the role played by the ICL in parenting proceedings, including in this matter, is invaluable. The role of the ICL was summarised in the context of an application for costs in proceedings before the High Court of Australia in CDJ v VAJ (No 2) (1998) 197 CLR 172 and specifically, by Kirby J at [11], as follows:

    The children's representative has a duty to “act in an independent and unfettered way in the best interests of the child”. This duty carries over to an appeal. The interests of the children and their welfare is of concern to the public. Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this court.  [References omitted].

16. I accept that it is in the public interest for the best interests of children to be represented in proceedings before this Court and that the Court invariably receives substantial assistance, in that regard, from ICLs appointed in parenting proceedings.  Such assistance was provided by the ICL in this case.

17. Also relevant in these proceedings is s 117(5) of the Act, which provides:

    (5)  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.

18. Accordingly, it is my view that the ICL should be presumed to be unfunded and, having regard to authority, in those circumstances, the Court is generally inclined to order litigants to contribute to the ICL’s costs: Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma [2013] FamCA 566.

19. I note that a consideration of the father’s financial circumstances, pursuant to s 117(2A)(a), necessarily overlaps with the concept of financial hardship as referred to in s 117(4), which I have set out. The father substantially relies on this factor as the basis upon which he should not be required to pay half of the ICL’s costs.

20. As stated, I have had consideration to the father’s gross income and expenses, the fluctuating nature of his employment and the fact that he is now the child’s sole carer.  I must now determine whether, having regard to the husband's financial circumstances, imposing a costs order upon him in the nature of that sought by the ICL would result in him suffering financial hardship. 

21. In that context, the solicitor for the wife referred to the mandatory wording of s 117(4), which states that the Court “must” not make an order for the costs of the ICL under subsection (2) against a party, if the Court considers that this would result in that party suffering financial hardship.

22. Insofar as the father asserts that he would suffer such financial hardship, he carries the onus of establishing that fact.  As stated, the father's Affidavit sets out details of his income, rental expenses and motor vehicle expenses. 

23. Annexed to the father’s Affidavit is a copy of his Visa debit card account statement in respect to the period 31 December 2018 to 24 January 2019.  That statement includes a number of deposits, the source of which is a bank account with the number ending “#26”.  No information has been provided in respect of that account.  Further, that statement sets out several withdrawals and transfers from the husband’s Visa debit card account, including sums of $1000 and $1790 on 16 January 2019, which have not been explained.  In the absence of greater particularity regarding how those funds have been applied and the nature of the account with the number ending “#26”, I am not satisfied that the schedule of income and expenses set out at Annexure “F” of the father’s Affidavit necessarily presents the totality of his financial circumstances. 

24. I, nonetheless, accept that the father has very little property and an income of approximately $1,500 per week.  That evidence was not challenged.  I further accept, at the least, that he incurs expenses in respect of the lease he holds for his motor vehicle and that he necessarily will incur other daily living for himself and the child.  By way of summary, it appears to be the case that the father is, effectively, living off his income, from week to week. 

25. While I am satisfied that an order for the father to immediately pay the sum of $4,175 to the ICL would place him in a position of financial hardship, insofar as it would deprive him of the opportunity of meeting his daily living expenses, I consider that he should be required to meet that cost over a longer period of time. In making that decision, I have had regard to the public interest in the best interests of children being represented in proceedings by the appointment of an ICL and the fact that I am required, by s 117(5), to disregard that this is funded under a public service allocation. I have also had regard to the father’s evidence in relation to his financial circumstances, which is not sufficient to satisfy me that he is not able to comply with the orders sought by the ICL, if the timeframe for doing so was extended.

26. Pursuant to rule 19.18(1)(a) of the Family Law Rules 2004 (Cth), the Court may make an order for costs of a specific amount. Having regard to the principles adumbrated by Kent J in Stoian & Flemming (Costs) [2014] FamCA 944 at [91], I am satisfied that the costs figure sought by the ICL is logical, fair and reasonable. I will, therefore, make an order for costs in favour of the ICL in the sum of $4,175, being 50 per cent of the total costs incurred by the ICL in this matter. I will require that the father make that payment within six months.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 1 February 2019.

Associate: 

Date:  15 February 2019