Jillet and Murdoch (No. 2)

[2018] FamCA 604

FAMILY COURT OF AUSTRALIA
(Amended pursuant to Rule 17.02)

JILLET & MURDOCH (NO. 2) [2018] FamCA 604

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer seeks that the parties pay the ICL’s costs of the proceedings – Where the mother and father oppose paying costs – Where both parties have the financial capacity to contribute to the ICL’s costs – Where neither party was wholly successful in the proceedings – Where costs of an interim hearing were reserved to final trial – Where the mother was wholly unsuccessful in that interim hearing – Where it is appropriate that the mother pay the ICL’s costs of an incidental to that interim hearing – Where otherwise it is appropriate that the parties both contribute to the ICL’s costs of the proceedings – Orders made.

Family Law Act 1975 (Cth) s 117

D & D (Costs) (No. 2) (2010) FLC 93-435
Jillet & Murdoch [2018] FamCA 313
Murdoch & Jillet [2017] FamCA 1067
Penfold v Penfold (1980) 144 CLR 311
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

APPLICANT: Mr Jillet

RESPONDENT: Ms Murdoch

INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Assoc

FILE NUMBER: PAC 5266 of 2015

DATE DELIVERED: 10 August 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 June 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Mr Jillet in person
SOLICITOR FOR THE RESPONDENT:	Derham Houston Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Brian Samuel & Assoc

Orders

1. That within 30 days of the date of this Order the mother pay to Legal Aid NSW the sum of $10,310 in payment of her contribution toward the Independent Children’s Lawyer’s professional costs.

2. That within 30 days of the date of this Order the father pay to Legal Aid NSW the sum of $8,390 in payment of his contribution toward the Independent Children’s Lawyer’s professional 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 Jillet & Murdoch 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 PARRAMATTA

FILE NUMBER: PAC 5266 of 2015

Mr Jillet

Applicant

And

Ms Murdoch

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The Independent Children’s Lawyer (“ICL”) seeks the payment of his costs in relation to parenting proceedings between Mr Jillet (“the father”) and Ms Murdoch (“the mother”).

2. The parenting dispute between the mother and the father was finalised in May 2018 when I delivered judgment[1] (“the May 2018 Judgment”) and made final orders (“the final parenting orders”) for the parents to equally share parental responsibility for the children and for the children to live with the mother and spend gradually increasing defined time with the father.

   [1]Jillet & Murdoch [2018] FamCA 313

3. At the conclusion of the final hearing the ICL made an application that the parties pay the ICL’s costs of the proceedings. This application was pressed when the May 2018 Judgment was delivered. The ICL’s application was opposed by the mother and the father.

4. The question for me to determine is whether there are circumstances that justify an order for the parties to pay the ICL’s costs.

Background

1. The parenting proceedings between the parties were extensive and complex. The substantive background of the proceedings relevant to the present application for costs is set out in the May 2018 Judgment at [1] – [5] and [38] – [53]:

   The parties’ two young boys, B aged six and C aged five (‘the children”), lived with both parents until separation in October 2014.  At that time the mother took the children to live with her and since that date the children have spent limited and usually supervised time with their father.

   The children’s mother contends that the father poses an unacceptable risk of harm to his children and seeks orders that he continue to spend very limited supervised time with them until they reach high school age and that he then spend time with them during the day only. The mother also wishes to have sole parental responsibility for her sons.

   The father contends that he has never posed any risk of harm to his children and has only accepted that his time with them be supervised to date as he had no alternative in the circumstances. He proposes orders that would see him share parental responsibility for the boys with the mother and that they live with the mother and spend substantial and significant time with him.

   The independent children’s lawyer (“ICL”) supports the father’s position that he does not pose an unacceptable risk of harm to the children and that it is in their best interests for orders to be made in similar terms as those proposed by the father.

   The question for me to determine is which proposed suite of orders is proper having regard to the paramount consideration being the best interests of the children.

   …

   The father commenced parenting proceedings in the Federal Circuit Court in January 2016.

   In January 2016 the mother engaged a family therapist to seek advice in relation to the children.

   The mother contends that in the course of various conversations in March 2016 the children made disclosures concerning the father or his conduct which caused her concern.

   The first court event in these proceedings was on 12 April 2016 when orders were made for the parties to enrol with a contact service for the purposes of supervised time between the father and the children and the matter was transferred to this court.

   In May and June 2016 the mother took the children for an assessment by a paediatrician. She also sought the services of an agency which supports families who have experienced trauma and abuse.

   The mother alleges that there were further conversations with the children which gave rise to additional concerns about the father’s conduct in June and July 2016.

   In August 2016 a child and family psychiatrist was appointed to provide an expert opinion in the proceedings.

   On 9 September 2016 interim orders were made that the children live with the mother and spend time with the father supervised at a contact centre for at least two hours per fortnight. 

   The children’s time with their father recommenced in October 2016.

   The expert interviewed the family members in November 2016. The expert’s report was released in January 2017.

   In January 2017 the mother relocated from Sydney to a regional city within days of the new school year commencing.

   Following the mother’s relocation the children continued to spend time with their father at the contact centre in Sydney each alternate weekend.

   On 22 May 2017 orders were made by consent for a friend of the father to supervise the father spending additional time with the children for a six hour block period each alternate weekend. The father also began spending two hours supervised with the children in their home city on one day of each alternate weekend in substitution for the time that had been occurring at the contact centre in Sydney. These contact arrangements continued to be in place at the time of the final hearing in February 2018.

   The final hearing proceeded over three days between 5 and 7 February 2018.  Although a subpoena had been issued to the hospital in relation to the younger child’s admission on 2 November 2015 no documents in relation to that admission were produced by the hospital.  Subsequently it became apparent that this was due to an error in the hospital records.  As the circumstances surrounding this hospital admission had become a very central issue in the dispute the proceedings were adjourned for a few weeks to allow for the documents to be produced on subpoena. 

   The hearing was completed following further cross-examination of each of the parties on 27 February 2018. 

   On 27 April 2018 the proceedings were listed for some short submissions concerning the practical implementation of orders proposed by the parties.

2. In the May 2018 Judgment, after detailed analysis of the evidence, I found that the father does not pose an unacceptable risk of harm to the children on any basis and there was a benefit to the children in having a meaningful relationship with both of their parents.

3. In that judgment I concluded at [470] – [475]:

   The parents of the two little boys under consideration are capable and highly competent, clearly love their children and want the best for them.

   I am not satisfied that the children have been abused, neglected or exposed to family violence in the care of either of the parents or that there is a real risk that this will occur in the future. 

   Having regard to the role of each of the parents in the children’s lives, the pattern of care prior to separation and the nature of the parent-children relationships, the children will clearly receive a significant benefit from having a meaningful relationship with both parents in the future. 

   There is no need for the purposes of protecting the children from harm for their time with their father to continue to be limited and supervised.  Such an arrangement is also impractical and is not necessary for the purposes of ensuring the mother’s continued functioning as a capable parent.  There are also risks that if such an arrangement were to continue the relationship between the children and their father would break down which would be detrimental to their welfare and wellbeing.

   For these reasons and having regard to all of the other matters taken into consideration in the foregoing judgment I am of the view that it is in the best interests of the children to make orders as proposed by the ICL and ultimately adopted by the father with some minor amendments as to practicalities of the orders.

   I also include the mother’s proposed order in relation to notifying the father in the event of any proposal to move from her current location. I have increased the notice the mother is required to give the father from 28 days to 60 days (two months) to allow the father sufficient time to file an Initiating Application with the Court in the event he opposes the mother relocating with the children and he and the mother are unable to compromise as to this issue. In any event, as an order will be made for the parents to equally share parental responsibility the mother should not be providing notice to the father of imminent relocation but rather providing notice to the father of her desire to move the residence of a children so that the parents can together make a decision about this matter.  

4. When the May 2018 Judgment was delivered I made orders for each of the parents to file and serve written submissions in response to the ICL’s application for costs with the ICL to file and serve any submissions in response shortly thereafter.

5. All parties filed submissions with the final submissions of the ICL received on 9 June 2018. 

The law

1. The ICL is seeking that his costs in the proceedings ($22,000 overall for the final hearing including $1,920 for an interim hearing) be paid by the mother and father but makes no application for the apportionment of costs between the parties.

2. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), and the Court may make an order for costs if there are circumstances that it is of the opinion justify it in doing so.

3. The High Court in the matter of Penfold v Penfold[2] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [2] (1980) 144 CLR 311

4. The Act makes specific provision in section 117 for orders as to the costs of an ICL:  

   (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.

   … 

   (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.

5. The Court is conscious of the restrictions provided in section 117(4) of the Act that the Court must not make an order against a party in favour of an ICL if the party has received legal aid in the proceedings, or if the Court considers the party “would suffer financial hardship” as a result of an order to bear a proportion of the ICL’s costs.

6. The mother submits, in her written submissions, that an order requiring her to pay the costs of the ICL in the sum of $11,000 would cause her significant financial hardship.

7. The mother submits that she has surplus income of only $30 per week, an amount which is expected to reduce once the father moves to the R Town area, his time with the children increases and his child support payments decrease accordingly. She further submits that on her current income she does not have the capacity to borrow the necessary funds to cover the ICL’s costs. 

8. The mother annexes her Financial Statement sworn 7 June 2018 in support of her written submissions.

9. In that Financial Statement the mother deposes to her weekly income totalling $2,121.94 being $1,643.94 per week from her part time employment and $190 per week in child support payments from the father. She further deposes to her weekly expenses totalling $2,095.34 including tax, superannuation and mortgage payments (on the property registered in her sole name) totalling $1,098.34. The balance of the mother’s weekly expenditure is not detailed in her Financial Statement.

10. In written submissions filed on 9 June 2018 the ICL makes no comment as to the parties’ financial circumstances other than to note that the mother was able to fund legal representation throughout the proceedings and both parties were able to fund the expert’s report and attendance at court for the hearing.

11. I accept the submission of the ICL that the mother was able to fund the costs of the entirety of the parenting proceedings including the costs of the expert’s report and attendance at court.

12. It is apparent from her Financial Statement that the mother is the sole owner of an encumbered property in which she and the children live and has a small superannuation interest and minimal funds at bank. The mother is also earning approximately $1,000 per week after tax from her part-time employment.

13. The weekly expenses detailed by the mother in her Financial Statement, not including tax, total approximately $500. The further weekly expenses which she claims cause her to have only $30 per week of surplus income are not detailed but are estimated to total $900.

14. I am unable to make a proper assessment of the mother’s weekly expenditure given the lack of detail in her Financial Statement. However, it is clear that the mother has property, and is likely to have other financial resources to draw on given her funding of the litigation, if an order for her to pay a portion of the ICL’s costs was made. It is also clear that the mother has significant earning capacity given she makes over $80,000 per year before tax working only part time.

15. On the basis of the information available to me I do not find that the mother would experience financial hardship as a result of having to pay a portion of the ICL’s costs.  

16. It is not submitted by the father that he would suffer financial hardship if an order were made for him to bear a proportion of the ICL’s costs though his financial position is a matter that will be considered later in these Reasons.   

17. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.The relevant matters will be considered and balanced below, noting that there is nothing preventing any one factor being the sole determinant for an order for costs.[3]

    [3]PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

The financial position of each of the parties to the proceedings

1. The mother’s financial position has been dealt with earlier in these Reasons. It is my view that she has the capacity to pay the ICL’s costs. 

2. The father submits that he has limited financial capacity to pay the ICL’s costs in the sum of $11,000. He submits that he has limited savings, in part because of the actions of the mother in removing the entirety of the parties’ $300,000 joint savings at the time of separation, and does not presently own a home or any “luxury goods” that can be converted into cash with which to pay the ICL’s costs.

3. The father does submit however that it is appropriate that he pay a portion of the ICL’s costs. For reasons that will be dealt with later in this Judgment he submits that he should contribute a further $5,850 towards the ICL’s costs of the proceedings rather than $11,000 as the ICL is seeking. It must be taken from this submission that the father acknowledges that he has the capacity to pay at least $5,850 towards the ICL’s costs.

4. While it is clear that the father’s capacity to contribute to the ICL’s costs is limited, given his lack of financial and property resources, the father is employed and does have some money in savings that could be used to pay the ICL’s costs.

5. I find that both parties have the capacity to pay the ICL’s costs. In any event, even if one or both parties did not have the capacity to pay, financial impecuniosity is no bar to the making of an order for costs.[4]   

   [4]D & D (Costs) (No. 2) (2010) FLC 93-435.

The conduct of the parties to the proceedings in relation to the proceedings

1. The parenting proceedings to which this application for costs relates were lengthy and complex necessitating multiple interim hearings before the final hearing and delivery of the May 2018 Judgment.

2. It is noted that the ICL made an application that the mother pay his costs at the conclusion of the interim hearing before Justice Foster in 2017. This interim hearing related to an Application in the Case filed by the Mother shortly before the final hearing commenced.

3. At the interim hearing the mother sought orders that the father’s friend, who had been supervising extra time between the father and the children as per interim orders made by consent, be removed as supervisor as she had concerns he was not appropriately supervising the father with the children.

1. Her application was made in the context of the expert report having recommended that the father’s time with the children be unsupervised, the orders which she sought to challenge having been made by consent and the final hearing being only two months away.   

2. The Judgment[5] of Foster J (“the December 2017 Judgment”) dismissing the mother’s application in its entirety, includes the following at [43] – [44]:

   In the event of the mother’s application being dismissed the ICL, who had been put to the expense of appearing and preparing submissions, sought an order that the mother pay his costs of and incidental to the application.

   In the absence of detailed submissions as to costs and in the absence of any evidence as to some of the relevant factors in section 117(2A) of the Family Law Act 1975 (Cth) it is appropriate that the costs application of the ICL as against the mother be reserved for determination at final trial. An order will be made accordingly.

   [5]Murdoch & Jillet [2017] FamCA 1067

3. The ICL’s costs associated with the interim hearing before Foster J in December 2017 were $1,920.

4. It is clear from the December 2017 Judgment that the mother was wholly unsuccessful in her application in circumstances where she adduced little evidence to support the complaints made by her and the complaints themselves were not of great significance.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. Neither party was wholly successful or unsuccessful in the parenting proceedings.

2. While the final parenting orders were those proposed by the ICL and ultimately adopted by the father, with minor amendments, certain orders as sought by the mother were also made and the orders do not completely reflect the position of either party as at the commencement of the final hearing.

3. However, as noted above the mother was wholly unsuccessful in the interim proceedings before Foster J in December 2017.

Such other matters as the court considers relevant

1. The father submits that by letter dated 21 April 2016, and annexed to his submissions, the ICL informed the parties that “legal aid has decided that the total cost for the dispute shall not be over $15,000”. He therefore submits that the portion of the ICL’s costs paid by him should be capped at $5,850, being $7,500 (half of $15,000) less the $1,650 that he has already contributed towards the ICL’s costs.

2. In response to the father’s submissions concerning the letter dated 21 April 2016 which refers to the cost of the proceedings being $15,000, the ICL made the following submissions:

   The Legal Aid cap as stated in the standard letters forwarded to the parties following the appointment of the ICL is subject to the discretion of the Director of Legal Aid NSW. Due to the numerous interim applications filed by the parties and the length and protracted nature of the proceedings the initial Cap of $15,000 was exceeded and approved by Legal Aid NSW. Hence the total costs incurred by Legal Aid NSW, as advised, are in the vicinity of $22,000.00.

   The Independent Children’s Lawyer notes that the standard Cap in respect to Independent Children’s Lawyers costs has since increased to $18,000.00. (sic)

3. While it is unfortunate that the ICL’s total costs of the proceedings are greater than the estimated costs as stated to the parties in April 2016, as previously stated these proceedings were lengthy and complex. I accept the submission of the ICL that the length and complexity of the proceedings mean the total costs of the ICL are greater than originally anticipated.

Conclusion

1. In relation to the interim hearing before Foster J in December 2017, the mother was wholly unsuccessful in her application to have the supervisor of the father’s time removed. This application caused the ICL to incur significant extra costs less than two months before the final parenting hearing in which the necessity for supervision of the father’s time with the children was to be a central issue in dispute.

2. In these circumstances it is appropriate for the mother to be solely responsible for the costs incurred by the ICL of and incidental to the interim proceedings before Foster J in December 2017.   

3. In relation to the ICL’s costs of the final parenting proceedings, balancing the relevant matters that I have set out, I am satisfied that it is appropriate for both parties to pay an equal proportion of the ICL’s costs.

4. Both parties have already paid $1,650 towards the costs of the ICL. I have also found that it is appropriate for the mother to pay in full the costs of the ICL of and incidental to the interim application made by her in late 2017 as dealt with above.

5. Accordingly it is appropriate that orders be made for the mother to pay $10,310 to Legal Aid in respect of the ICL’s costs and for the father to pay $8,390.

6. Those orders are set out at the forefront of these Reasons for Judgment.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 August 2018.

Legal Associate: 

Date:  10 August 2018