Legal Aid and Shroeder and Anor

[2011] FamCA 1067

FAMILY COURT OF AUSTRALIA

LEGAL AID & SHROEDER AND ANOR [2011] FamCA 1067

FAMILY:LAW – COSTS – Application by ICL for costs – Where mother consents to application – Whether circumstances justify departure from s 117(1) Family Law Act 1975 – Where father has capacity to pay the amount sought by Legal Aid – Where father failed to give full and frank disclosure in property proceedings – Where the father was largely unsuccessful in relation to the parenting proceedings – Application granted.

Family Law Act 1975 s 117

APPLICANT: Legal Aid

FIRST RESPONDENT: Mr Shroeder

SECOND RESPONDENT: Ms Drummond

FILE NUMBER: NCC 2853 of 2007

DATE DELIVERED: 30 November 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 30 November 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Scally

ADVOCATE FOR THE FIRST RESPONDENT: No appearance for or on behalf of Mr Stevens

SOLICITOR FOR THE SECOND RESPONDENT: Ms Jordan as agent for Denise Clark, solicitor

Orders

1. BY CONSENT within six (6) months Ms Drummond shall pay $6,400.00 (inclusive of GST) to Legal Aid for her contribution to the costs of the Independent Children’s Lawyer in these proceedings.

2. Within six (6) months Mr Shroeder shall pay $6,400.00 (inclusive of GST) to Legal Aid for his contribution to the costs of the Independent Children’s Lawyer in these proceedings.

3. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym  Legal Aid & Shroeder and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 2853 of 2007

Legal Aid

Applicant

And

Mr Shroeder

First Respondent

And

Ms Drummond

Second Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application by the Independent Children’s Lawyer (“ICL”) for her costs incurred in relation to the representation of the parties’ children, J and K.  It is clear from my reasons given in the substantive proceedings that the ICL played an active and constructive role in advancing the children’s best interests.  In short, the ICL was no passive bystander, and I endorse the comments made by the mother’s solicitor in relation to the representation undertaken by the ICL. 

3. The mother consents to the application for costs insofar as it relates to her. Thus, within six months, she commits to the payment of $6,400.00 to Legal Aid. That represents one-half of the total costs sought by Legal Aid. Although I do not have an itemised account which identifies with particularity how that total sum has been reached, it is evident from the file that if costs were assessed in accordance with the Family Law Rules 2004, the amount payable would be significantly greater. I am untroubled that I am asked to deal with this matter without an itemised account.

4. Before the Court can make an order for costs, the Court must be satisfied that there are justifying circumstances for so doing.  Legal Aid is not a necessary party to the proceedings and joined the proceedings at the Court’s invitation.  They are strangers to the parties, which in my view, in a case such as this, constitutes justifying circumstances.  Prima facie parties pay their own costs, and that is a provision that would otherwise apply to Legal Aid as well.  However, when one traverses the relevant s 117(2A) factors, the argument in favour of a costs order is clearly a strong one.

5. The parties’ financial circumstances are traversed in my reasons for judgment delivered 22 September 2011.  In those reasons, I find that the father failed to give full and frank disclosure, and his failure to do so influenced the outcome of the s 79 property settlement proceedings.  Notwithstanding his failure to give full and frank disclosure, I was satisfied that he had from an inheritance sufficient funds to discharge his liabilities.  His evidence was not sufficient to enable the Court to make precise findings in relation to his earning capacity.  He is self-employed, and I found that it was highly likely that once the proceedings were finalised, he would earn more than he said he was earning at the time of the hearing.

6. In short, I am satisfied the father has the capacity within six months to pay the $6,400.00 sought by Legal Aid.  He does not have a grant of legal aid and it would appear incurred not inconsiderable legal expenses in relation to his representation.  In relation to the parenting matters, he was largely unsuccessful, and the orders made were far more consistent with the orders proposed by the ICL than by him.  The combination of the father’s lack of success, his financial circumstances and that Legal Aid is a stranger to the parties persuades me that an order for costs as sought by Legal Aid against the father should be made.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 30 November 2011.

Associate:     

Date:              21 February 2012