Keat & Veldon (No. 2)

In *Keat & Veldon (No. 2)*, Cleary J of the Family Court of Australia considered an application by the Independent Children’s Lawyer (ICL) for the mother and father to contribute to the costs of the ICL's representation. The dispute arose in proceedings where both parents were unrepresented, and counsel for the ICL undertook the majority of the cross-examination. The total costs incurred by the ICL amounted to $19,383.61, including disbursements for a single expert witness.

The primary legal issues before the Court were whether to order the parents to contribute to the ICL's costs, and if so, in what proportion, having regard to the provisions of section 117(3) of the *Family Law Act 1975* (Cth). A key consideration was whether ordering either party to contribute would result in financial hardship, which would preclude the Court from making such an order. The Court also had to assess the financial circumstances of each parent based on the limited documentation provided.

Cleary J reasoned that while the ICL's role is to assist the Court, and their counsel had conducted extensive cross-examination, the Court's discretion to order costs was qualified by the prohibition against ordering costs that would cause financial hardship. The mother, who primarily cares for the children, provided financial documentation demonstrating significant weekly expenses and a low income, leading the Court to conclude that an order for her to contribute would cause financial hardship and adversely impact the children. In contrast, the father provided no documents detailing his financial position. Although he claimed unemployment due to COVID-19 and noted age-related limitations on future employment prospects, he owned and resided in the former family home and was assessed as paying nil child support. In the absence of evidence to the contrary, the Court determined that the father would not suffer financial hardship if ordered to contribute.

Consequently, the Court ordered the father, Mr Keat, to pay the sum of $962.50 to Legal Aid NSW as a contribution to the costs of the Independent Children’s Lawyer on or before 12 May 2021. This amount represented his equal share of the balance of the attendance fees for the expert witness, as pragmatically submitted by the ICL.