Krusaroski and Krusaroski - [2019] FamCA 893

FAMILY COURT OF AUSTRALIA

KRUSAROSKI & KRUSAROSKI

[2019] FamCA 893

FAMILY LAW – COSTS – Costs of the Independent Children's Lawyer – Where the Independent Children's Lawyer has sought that the mother pay half of their costs of the proceedings – Where the mother asserts that she will suffer financial hardship if she is required to pay half the costs of the Independent Children's Lawyer – Where the mother has net assets of approximately $650,000 – Court orders that the mother pay half the costs of the Independent Children's Lawyer within 6 months.

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:

Ms Krusaroski

RESPONDENT:

Mr Krusaroski

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Family Law

FILE NUMBER:

SYC

626

2012

DATE DELIVERED:

28 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

18-20 November 2019, 22 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Dowdle from Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Johnston and with leave, Ms Kennedy on 22 November 2019.

SOLICITOR FOR THE RESPONDENT:

Mcauley Hawach Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lioumis

INDEPENDENT CHILDRENS LAWYER:

Legal Aid NSW Sydney Central Family Law

Orders

Orders are made in accordance with the Minute of Consent attached hereunder.
That within six (6) months of the these Orders, the mother shall pay Legal Aid NSW the sum of $6565.00 inclusive of GST, being her share of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties.
In the event of the mother wishing to pursue to her Application for costs as set out in her substantive Application she, through her legal representative, is to file an Application within 14 days. In the events she does, the father has to respond to that Application by Friday 20^th December.

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 Krusaroski & Krusaroski 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 626 of 2012

Ms Krusaroski

Applicant

And

Mr Krusaroski

Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an Application brought by the Independent Children’s Lawyer (“ICL”) for the mother to pay half…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FamCA 893
Decision Date: 28 November 2019

CaseChat Overview and Summary

In the District Court of New South Wales, the parties to the proceedings were the mother and the father, concerning parenting matters. The dispute, as evidenced by the orders made, involved the costs associated with an Independent Children's Lawyer appointed in the parenting proceedings.

The court was required to determine the apportionment of the costs of the Independent Children's Lawyer and to address the mother's potential application for her own costs.

McClelland DCJ made orders by consent, reflecting an agreement between the parties. The mother was ordered to pay Legal Aid NSW $6,565.00 inclusive of GST, representing her share of the Independent Children's Lawyer's costs. The orders also stipulated that if the mother wished to pursue her own application for costs, she was to file a formal application within 14 days, to which the father would then be required to respond by a specified date.

Orders

Orders of the court

Orders are made in accordance with the Minute of Consent attached hereunder.

That within six (6) months of the these Orders, the mother shall pay Legal Aid NSW the sum of $6565.00 inclusive of GST, being her share of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties.

In the event of the mother wishing to pursue to her Application for costs as set out in her substantive Application she, through her legal representative, is to file an Application within 14 days. In the events she does, the father has to respond to that Application by Friday 20th December.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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