Kest & Olsson - [2012] FamCA 148

FAMILY COURT OF AUSTRALIA

KEST & OLSSON

[2012] FamCA 148

FAMILY LAW - COSTS – application by the Independent Children’s Lawyer (‘ICL’) seeking orders that the mother and father pay the costs of the ICL – where the ICL submits that the Court should take into account the need to protect the public purse – consideration of the factors in s 117(2A) – consideration of the financial circumstances of the parties – where it was not just and equitable for a costs order to be made in the circumstances – no orders made as to costs.

Family Law Act 1975 (Cth) s 117

APPLICANT:

Ms Kest

RESPONDENT:

Mr Olsson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Northern Territory Legal Aid Commission

FILE NUMBER:

NCC

278

2008

DATE DELIVERED:

12 March 2012

PLACE DELIVERED:

Darwin

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

12 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gordon

SOLICITOR FOR THE APPLICANT:

Ward Keller

COUNSEL FOR THE RESPONDENT:

Mr Levick

SOLICITOR FOR THE RESPONDENT:	Gianacas Argiris McDonald
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWEYR	Ms Palavra
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Northern Territory Legal Aid Commission

Orders

By consent orders are made in terms of the minutes this day signed by the Honourable Justice Dawe with the mother’s solicitors to engross the orders for sealing by this Court within seven days from today.
The appointment of the Independent Children’s Lawyer is discharged.
No order made as to costs.
Remove all matters from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: NCC 278 of 2008

Ms Kest

Applicant

And

Mr Olsson

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

I have before me the application on behalf of the Independent Children’s Lawyer that the parties, the mother and father of the children, in these proceedings pay the costs of the Independent Children’s Lawyer. That application is opposed by both the counsel for the mother and counsel for the father.
The matter was listed before me today for a trial which was estimated to take four days. I have already congratulated the parties and counsel on their resolution of the matter by way of Consent Orders which I made this morning.
The question of costs in this matter of course needs to be seen in the context of the history of the matter and, specifically pursuant to the provisions of section 117, in particular the provisions of subsection 117(1) which provides that, subject to subsection (2) and other subsections and other sections, each party to the proceedings under the Family Law Act 1975 (Cth) (“the Act”) shall pay his or her own costs.
Subsection (2), however, provides that if the Court is of the opinion that there are circumstances that justify it in doing so it may, subject to the provisions of sections (2A), (4) and (5) and the rules of Court, make an order for costs being such order as the Court considers just.
The provisions of subsection (3) of section 117 were inserted more recently than the original provisions of the section to avoid doubt where:
“…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”.
Significantly the provisions of subsection (5) state:
“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.”
Therefore the Court needs to consider, in relation to both the mother and the father in these proceedings, whether, considering the provisions of subsection (2A), an order for the Independent Children’s Lawyer’s costs to be paid by the father or the mother or both the father and the mother should be considered just.
The Court is required to take into account those matters set out in subsection (2A).
The parties have made submissions to me on the basis that the submissions I have received as to their financial circumstances are not contentious and I can receive that as evidence.
Therefore this allows me to consider one of the factors which are the financial circumstances of each of the parties under subsection (a) of section 117(2A).
There is no legal aid therefore subsection (b) is not relevant.
From the submissions I have heard and the history of the matter, subsection (d) is not considered relevant to this costs order.
Subsection (e), “whether any party to the proceedings has been wholly unsuccessful”, is also not relevant as a consent order has been made which provides for the father to have equal parental care and spend significant time with the children.
In relation to subparagraph (f), which is an offer in writing and the terms of the offer, as the application is by way of a costs order sought by the Independent Children’s Lawyer, that would not be considered a significant factor and I have not had any submissions in relation to the same.
In relation to subsection (c), “the conduct of the parties to the proceedings”, the significant factor in this matter is that it was a matter which was declared to be a Magellan matter. I would assume that on that basis the appointment of the Independent Children’s Lawyer was considered by the Court not only to be appropriate but, in circumstances such as this, almost necessary.
The appointment was presumably made because the Court would be greatly assisted by the appointment of the Independent Children’s Lawyer in preparing the matter for final determination by the Court. Indeed it appears that there has been significant contribution by the Independent Children’s Lawyer to the preparation of the matter for trial and in relation to more recent negotiations to resolve the matter.
One of the factors under section 117(2A) is subsection (a), “the financial circumstances of each of the parties to the proceedings”. I have been given that information this afternoon. It clearly indicates that although the father has a substantial income from his employment, he also has significant regular expenses and ongoing liabilities such that he continues to have unpaid fees of some $20,000 owing to his lawyer and minimal assets.
The mother’s situation is substantially less by way of income but she also has significant outgoings in relation to general expenses and her day-to-day living costs. She also has significant unpaid legal fees.
The Court must balance all of those factors and consider taking into account all of those relevant matters whether it would be just to order that the costs of the Independent Children’s Lawyer be met by the parties.
On behalf of the Independent Children’s Lawyer it was submitted that I should take into account the need to protect the public purse. Whilst that could be a factor which might otherwise fall under subsection (g), the provisions of subsection (5) require the Court to disregard the fact that the Independent Children’s Lawyer is funded by a legal aid scheme or service established under a Commonwealth State or Territory law or approved by the Attorney-General.
Weighing up all of the factors and, in particular, in relation to the difficult issues which faced the parties, namely, the father being faced with an allegation that he abused one of the children, and the mother faced with the statements made by one of the children, I am satisfied that the appointment of the Independent Children’s Lawyer and the conduct of the case by the parties since then is not such as would make it just to make any order for costs against the parties.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 12 March 2012.

Associate:

Date: 20 March 2012