Legal Aid Commission of Tasmania & Lahey and Anor

[2008] FamCA 252

FAMILY COURT OF AUSTRALIA

LEGAL AID COMMISSION OF TASMANIA & LAHEY AND ANOR [2008] FamCA 252

FAMILY LAW – COSTS – Costs of the child representative- Legal Aid Commission’s right of remuneration - Financial circumstances of the husband and wife justified an order.

Family Law Act 1975 (Cth) s 117

P B F as Child Representative for A F (Legal Aid Commission of Tasmania) and TRF & LKL [2005] FamCA 158.

APPLICANT: Legal Aid Commission of Tasmania

FIRST RESPONDENT: Mr Lahey

SECOND RESPONDENT:	Ms Addison
FILE NUMBER:	(P) SYF	3280	of		2003

DATE DELIVERED: 16 April 2008

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 13 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Patrick Fitzgerald

SOLICITOR FOR THE APPLICANT: Legal Aid Commission

COUNSEL FOR THE 1^ST RESPONDENT: Mr Phillip Connor

SOLICTORS FOR THE 1ST RESPONDENT	Argyle Partnership
COUNSEL FOR THE 2ND RESPONDENT	Mr Bruce Crawford

SOLICITORS FOR THE 2^ND RESPONDENT Murray & Associates

Orders

1. Within sixty (60) days of the date of this order, the respondent husband, Mr Lahey, pay the costs and disbursements of the Child Representative fixed at $14,175.50 with such payment to be directed to the Legal Aid Commission, Tasmania.

2. Within sixty (60) days of the date of this order, the respondent wife, Ms Addison, pay the costs and disbursements of the Child Representative fixed at $14,175.50 with such payment to be directed to the Legal Aid Commission, Tasmania.

3. This application is removed from the list of cases requiring determination.

   IT IS CERTIFIED

54. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: (P) SYF: 3280/2003

Legal Aid Commission of Tasmania

Applicant

And

Mr Lahey

First Respondent

And

Ms Addison

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application by the Child Representative, Patrick Barry Fitzgerald, (“PBF”) for an order that the wife and the husband pay the costs of the Child Representative in respect of parenting proceedings.

   BACKGROUND

2. In April 2003 proceedings were commenced between the husband and the wife relating to the parenting of J born in July 1997 and L born in November 2002.

3. In March 2004 those proceedings were transferred from the Sydney Registry of the Family Court to the Hobart Registry of the Family Court and on the 10 June 2004 an order was made requesting the appointment of a separate representative for the children.  PBF (“the Child Representative”) is a Legal Practitioner employed by the Legal Aid Commission of Tasmania, was appointed to act for the children and did so.

4. Parenting and property proceedings (“the substantive proceedings”) were heard over nine days in November/December 2005.  The husband and wife between them spent in excess of $500,000.00 in legal costs. 

5. Judgment was delivered by me on the 13 February 2006.  The husband filed a Notice of Appeal on the 10 March 2006, which was dismissed by judgment of the Full Court delivered on the 9 November 2007.

6. In March 2006 the Child Representative filed an application for costs against the parties.  That application in a case was adjourned pending the outcome of the appeal.  This application was heard before me on 13 March 2008.

7. The parties agreed that the costs of the Child Representative in relation to the substantive proceedings amounted to $28,351.00. The Children’s Representative sought a costs order against each of the husband and wife in the sum of $14,175.50.  This included the costs of the application in a case.

8. There was no issue as to the quantum of costs. 

9. Counsel for the parties and the Children’s Representative agreed that the amendments to s117(3), 117(4) and 117(5) did not apply to these costs applications.

10. The costs are determined under the provision of s117 of the Act and the general rule is that each party to the proceedings bears his, her or their costs, subject to s117(2). The parties all submitted that there were circumstances such as would justify the Court to consider making a costs order having regard to the matters set out under s117(2A) of the Act.

11. In March 2008 the husband filed an amended response to the application by the Children’s Representative consenting to the costs order.  The husband’s counsel confirmed that was the husband’s position and that he would consent to an order against him in the sum of $14,175.50.

12. The wife opposed the orders sought by the Child Representative on two grounds, the first being that as there was no evidence filed on behalf of the Children’s Representative that the money would be used by the Legal Aid Commission to fund further proceedings, it was likely that the money would go back into consolidated revenue and as such there ought not to be a costs order. The second, being the financial circumstances of the wife.

13. Initially counsel for the wife submitted that the financial circumstances of the wife were such that there ought not to be a costs order.  However, during further submissions counsel said he would not press that submission.

14. In any event the agreed costs of the Child Representative were modest when compared with the monies spent by the parties as set out in their affidavits in relation to the costs issue between the husband and the wife.  I have had regard to the wife’s financial circumstances as set out in her affidavits filed the 8 March 2006 and the 18 February 2008.  I have also had regard to the financial circumstances of the husband set out in his affidavit filed the 3 March 2008.  In addition to that material I have had regard to the costs order made in the Full Court which has not as yet been determined.

15. The wife’s solicitor, Roger Murray, in his affidavit sworn and filed the 8 February 2008 deposes that the solicitor/client costs of the wife in relation to the Full Court proceedings amount to $89,000.00.

16. There was an issue as to whether the wife could pursue those costs as she was out of time in terms of filing a bill of costs under the Rules of Court.  I was informed that this issue had been settled and I have had regard to the liability of the husband with respect to the costs of the wife’s of appeal which would be less than $89,000.00.  I have also had regard to the agreed fact that the husband will be paying the Child Representative costs of the appeal of approximately $5,000.00.

17. It appears that the wife has expended about $223,000.00 in respect of the proceedings at first instance and a further $89,000.00 on the appeal making a total of about $312,000.00.

18. The wife’s present financial position regarding assets and liabilities is set out at paragraph 6 of her affidavit filed the 18 February 2008 which discloses her assets and liabilities showing property (excluding superannuation) of about $118,000.00.

19. The wife has the care of two of the children the subject of the proceedings and a child of her marriage to Mr M, D who is aged about 4.[1]  Mr M is employed and earns about $63,000.00 per year.  The wife receives child support from the husband for the two children of the marriage, between the husband and the wife, totalling about $462.00 per week[2].

    [1] Paragraph s 4 (a) and (b) of the wife’s affidavit filed the 18 February 2008.

    [2] Paragraph 6 (d) of the wife’s affidavit filed the 18 February 2008.

20. The effect of this submission was to put in issue the financial position of the Legal Aid Commission (for who the Child Representative was employed).  This being in circumstances where it was agreed by all parties that s117(5) of the Act did not apply. 

THE LEGAL PRINCIPLES

1. The Full Court comprising of Justices Kay, Warnick and Boland JJ in PBF as Child Representative for A F (Legal Aid Commission of Tasmania) and TRF & LKL [2005] FamCA 158 discussed this, where they said that:-

   52.As to the question of the state of the law, prior to the Amendment Act, about the regard that might be had to the financial position of the Commission in an application such as was before the learned trial Judge, it seems generally agreed in the submissions before us that there were two “lines” of authority.

   53.On the one hand, were the decisions of Telfer and Telfer (1996) FLC 92-688, S v S (1997) FLC 92-762 and a decision of the Full Court in Re: David (Costs) (1998) FLC 92-809.

   54.On the other hand, were decisions of Faulks J (as he then was) in Harris v Harris [2000] FamCA 2141 and Cripps v Cripps (CA 1040 of 1999, April 2002) [2002] FamCA 1502.

   55.In Telfer, Lindenmayer J, dealing with an application by a separate representative for an order that the parties pay that representative’s costs of and incidental to proceedings which had settled, and in making that order, referred to the financial circumstances of the parties as a relevant matter under paragraph (a) of s 117(2A) of the Family Law Act and continued:

   “I suppose in this context, when the applicant for costs is the separate representative, one ought to also take account of the financial resources of the separate representative which are essentially those of the Australian Legal Aid Office.”

   56.His Honour returned to that point later, when he discussed a passage in the judgment of Mushin J in MacDonald and MacDonald (1994) FLC-508.  Lindenmayer J, said:

   “With respect, I do not share his Honour’s view that, as a matter of principle, the fact that the costs of the separate representative would otherwise be borne by the finite resources of the Legal Aid fund is not relevant to the exercise of discretion under s 117(2A) paragraph (g).  Rather, I take the view that it is relevant for the court to take that matter into account in the exercise of its discretion.

   As indicated, the funds of the Legal Aid Office are finite; they are subject to very heavy demands in all areas, not the least of which is the area of legal aid for separate representatives for children in proceedings before this court.  I think it is relevant for the court to consider, in the exercise of discretion as to costs, that the funds of such a body ought not to be exhausted in proceedings where there are other available means of providing the funds for the representation of the relevant children, and particularly where the necessity for that representation arises essentially out of conflict between the parties, rather than out of any deep-seated issues relating to the welfare of the children.”

   57.In Re: David (Costs) the Court, consisting of Nicholson CJ, Lindenmayer and Buckley JJ, expressed:

   “…agreement with the approach taken in Telfer so far as the exercise of the discretion under section 117(2A) is concerned.” (page 85,148)

   58.The position taken by Faulks J was that the question of any limitations of resources of Legal Aid authorities was not relevant, quite apart from the question of evidentiary support for findings about the extent of those resources.

   59.In Cripps, his Honour expressed the view:

   “12.…It is also proper, in my opinion, that the primary funding for such a representative should be from the public purse.…”

   60.His Honour also said:

   “35. Ms Proctor, contrary to the proposition contended for by Lindenmayer J in Telfer v Telfer suggested that the parties’ financial circumstances were inferior to those of the Children’s representative and that disparity is a matter that should be taken into account under section 117(2A)(a) in refusing the application for costs.  She remarked somewhat ironically that the Legal Aid Commission had “buckets of money”.  In my opinion that somewhat tentatively and frivolously advanced proposition is no more appropriately taken into account than was (with due respect to him) the opinion of Lindenmayer J to suggest (presumably from some external source) that the funds available to the Legal Aid Commissions were limited.  If matters are to be taken into account by a court, then, generally speaking, in my opinion, they should be the subject of evidence, not alleged notoriety.

   36.    Moreover, I do not accept within the context of section 117 that it is appropriate that the public purse should in some way be protected or preferred to the means and assets of the parties.…”

   61.It seems to us that the differences between Lindemayer J and Faulks J may have been resolved by the decision in Re: David (Costs), but for our purposes, we approach the matter in this way.

   62.If Re: David (Costs) confirmed that it was relevant in applications such as that with which we are concerned, to have regard to the financial position of the Commission and we found that the Commission had “finite” funds, that circumstance would probably support the order which we are inclined to make any way, on a consideration of the financial circumstances of the parties.

   63.We do however express concerns about evidentiary support for conclusions about the resources of the Commission, or any other Legal Aid authority.  These resources may well vary from time to time.  Moreover, there is an inherent difficulty in comparing the resources of a government funded body, whether “finite” or not, which are nonetheless probably of a very different dimension to the circumstances of private parties.

   64.In this case, even if we adopted the views of Faulks J, we would not alter our opinion of the justice of an order that the parties share, to some extent, the costs of the Commission.

   65.We think it unnecessary to say more about the differing authorities,  given the diminishing situations to which the law, as it stood prior to the Amendment Act, might apply.”

THE EVIDENCE

1. Byron Douglas Cross in his affidavit filed the 1 March 2006 deposed that he is a Legal Practitioner employed by the Legal Aid Commission of Tasmania and he is the Assignments Manager.[3]  In his affidavit he set out that he was responsible for making decisions on applications for grants and set out in paragraph 18 of his affidavit that:-

   [3] Paragraph 1 of the affidavit of Byron Douglas Cross filed the 1of March 2006.

   “18.The Legal Aid Commission of Tasmania is very concerned that its limited funds ought not be exhausted in proceedings where there are other available means of providing funds for representation of children made pursuant to s68L of the Family Law Act 1975.

   19.It is trite to say that the legal aid allocated to the Child Representative Mr Fitzgerald could have been otherwise granted to many other genuinely meritorious applications.

   20.I directed the Child Representative to bring the present  application because:-

   (a)The severe stress imposed on the finance resources of the Legal Aid Commission of Tasmania, and the ever increasing demand;

   (b)My view that the Respondents have a reasonably healthy financial circumstance and have not, despite the letter of 21 August 2003 requested the Commission to waives its determination to seek costs on the basis of financial hardship; and

   (c)In addition to the grants of aid, the Commission has to pay disbursement costs”.

2. From the evidence in that affidavit, which was not challenged, I find that both the parties were notified in August 2004, August 2005 and November 2005 that the Legal Aid Commission would seek reimbursement of their costs.[4]  I find that the parties have been put on notice that they were required to pay a portion of the costs associated with the separate representation of their children and that neither of the parents was in receipt of legal aid assistance.

   [4] Ibid at paragraph 21.

3. Part of the costs sought by way of reimbursement by the Child Representative are fees for expert reports.  In the factual circumstances as set out by Byron Cross in his affidavit I am satisfied that the reimbursement of these funds will, if allowed, impact on the allocation of grants of legal aid.

4. The submissions of Mr Fitzgerald, which I accept, are that while s117(5) does not apply the underlying philosophy, that is, that parties who have sufficient assets ought not to rely on the public purse (whether that be the Legal Aid Commission directly or consolidated revenue via the Legal Aid Commission) and should be responsible for the costs of the Children’s Representative.

5. I adopt that submission.

6. In terms of the financial circumstances of the wife I note the comments of the Full Court comprised of Nicholson C J, Lindemayer and Buckley JJ in Re David: costs (1998) FLC 92-809 where the Full Court quoted with approval, the approach adopted by the Full Court in the marriage if I (No 2.) as set out at page 85,149 where the Full Court went on to say:-

   “Secondly, we can accept that considerable costs may have accompanied such engagement whilst that may be a factor relevant to the mother’s financial circumstances, the fact having incurred such expenses cannot become a shield against an order for costs against her.  To the contrary, we agree with the Child Representative that with such legal advice to her disposal, it must be assumed she was aware of the costs order may follow if the appeal did not succeed”.

CONCLUSION

1. Having regard to all of the facts and circumstances in this matter and exercising the broad discretion I have in relation to costs I determine that each party ought to be responsible for one half of the costs and disbursements of the Child Representative.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Legal Associate:       

Date:    16 April 2008