Keat & Veldon (No. 2)

[2020] FamCA 942

FAMILY COURT OF AUSTRALIA

Keat & Veldon (No. 2) [2020] FamCA 942

File number(s):	NCC2875 of 2017
Judgment of:	CLEARY J
Date of judgment:	12 NOVEMBER 2020
Catchwords:	FAMILY LAW – COSTS – Where the Independent Children’s Lawyer seeks for the mother and father to contribute to costs – Where both parents were unrepresented and counsel for the Independent Children’s Lawyer undertook the bulk of cross-examination – Where the mother primarily cares for the children – Where the children would be adversely impacted and the mother would suffer financial hardship if ordered to contribute – Where the father did not present any document relevant to his financial position – Where he is unemployed as a result of COVID-19 and his age limits future prospects of employment – Where he owns and lives in the former family home – Where he is assessed as paying nil child support – Where, in the absence of third party financial information, it is determined that the father will not suffer financial hardship if ordered to contribute – Ordered the father pay $962.50 within 6 months.
Legislation:	Family Law Act 1975 (Cth) s 117
Number of paragraphs:	33
Date of hearing:	12 November 2020 - in chambers, by way of written submissions
Place:	Newcastle
Counsel for the Applicant:	N/A
Counsel for the Respondent:	N/A
Solicitor for the Applicant:	Self-Represented
Solicitor for the Respondent:	Self-Represented
Solicitor for the Independent Children's Lawyer:	Virginia Taylor Lawyer
Counsel for the Independent Children's Lawyer:	Tracey Flintoff

ORDERS

NCC2875 of 2017

BETWEEN:

MR KEAT

Applicant

AND:

MS VELDON

Respondent

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	12 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The father, Mr Keat, pay to Legal Aid NSW the sum of $962.50 as contribution to the costs of the Independent Children’s Lawyer on or before 12 May 2021.

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

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Veldon & Keat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CLEARY J:

INTRODUCTION

1. This is an application by the Independent Children's Lawyer ("ICL") for the parties to contribute to costs of representation of the subject children.

2. On 1 October 2020 final parenting orders were made and reasons delivered.

3. The father has since lodged an appeal against those orders.

   BACKGROUND

4. The parties were granted leave to file and serve by 29 October 2020 written submissions in relation to their financial circumstances.

   ·Exhibit 1 - documents supplied by the mother on 23 October 2020;

   ·Exhibit 2 - statement supplied by the father on 28 October 2020.

5. The work of an ICL usually assists the Court.

6. In this case, with both parents unrepresented the bulk of cross-examination was undertaken by counsel for the ICL.

7. The ICL also arranged for the Single Expert to attend the trial. The Single Expert was cross-examined over the course of almost a whole day by counsel for the ICL and by the father. One or two questions were raised by the mother and the Court.

8. Submissions by counsel for the ICL were thorough and wide ranging.

9. The costs of the ICL amounted to $17,458.61.

10. Disbursements related to the Single Expert and attending at Court (AVL) to give evidence [$3,300].

11. Legal Aid NSW had contributed to these costs in the sum of $1,375.

12. Accordingly, the total amount sought was:

    $17,458.61     Costs of up to and including trial

    $ 1,925.00      Balance of attendance fee

    $19,383.61

13. The ICL made a pragmatic submission to the effect that the parties should contribute equally to the balance of the attendance fees only for the Expert witness, that is, to pay $962.50 each.

    THE LAW

14. Section 117(3) of the Family Law Act 1975 (Cth) provides that a Court may make an order for costs in proceedings in which an ICL has been appointed for a child.

15. That order may be to the effect that each party to the proceedings bears, in such proportion as the Court considers just, the costs of the ICL in respect of the proceedings.

16. In this matter both parties were self-representing and did not have, or no longer had, a grant of Legal Aid.

17. The other qualification to the discretion to order costs in that if the Court considers that a party to the proceedings would suffer financial hardship if required to bear a proportion of the costs then the Court must not make an order.

    For the mother

18. The mother submitted her Child Support Assessment and her Centrelink Statement for Job Seeker payment. The mother is employed in healthcare. She presently receives $877.70.

19. The father has been assessed to pay NIL child support as at 15 October 2020.

20. The mother has weekly expenses of $800.05 excluding occasional expenses for herself and the children.

21. The mother pays rent of $360 per week.

22. I consider that the mother would suffer financial hardship which could lead to an adverse impact on the children if she were required to contribute to costs.

    For the father

23. The father did not present any document relevant to his financial position. For instance, a Centrelink statement, a tax return or bank statements.

24. The father's occupation is in the entertainment industry.

25. He asserts that he is unemployed due to COVID-19 with no present support for the industry.

26. He has also worked in the building industry, but lost that work as a result of being identified as a Person Causing Harm to Children. That restriction has now been removed.

27. However the father owns and lives in the former family home. He has not paid anything for the support of the children for the three years since separation in September 2017. He has bought clothes/games and bicycles for the children.

28. Health restrictions did not come into place until 2020.

29. The Court accepts that at this time and given his age (56) it would be difficult as he says to get an interview for employment.

30. Further, the Court accepts that the father has paid legal costs of a defended criminal hearing in the Local Court and legal costs in these proceedings up to but not including trial.

31. I conclude that right now income for the father is not what it was before COVID-19.

32. However, in the absence of any third party financial information I conclude that the father could make a modest contribution to costs without resultant hardship provided there is time to pay.

33. Accordingly, the father is ordered to pay $962.50 and allowed six months to pay.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary.

Associate:

Dated:       12 November 2020