Lessing and Manning

[2011] FMCAfam 1201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LESSING & MANNING [2011] FMCAfam 1201

FAMILY LAW – Costs.

Family Law Act 1975, ss.117(2A)(a)-(b), 117 (2A)(g)

Applicant: MS LESSING

Respondent: MR MANNING

File Number: SYC 6011 of 2008

Judgment of: Altobelli FM

Hearing date: Written submissions

Date of Last Submission: 31 August 2011

Delivered at: Wollongong

Delivered on: 7 October 2011

REPRESENTATION

Solicitors for the Applicant: Fulcrum Legal

Solicitors for the Respondent: DGB Lawyers

Independent Children’s Lawyer: Mark Whelan Lawyer

ORDERS

THE COURT ORDERS THAT:

1. The parties are to pay the Independent Children’s Lawyer’s costs assessed at $4169.20 each.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6011 of 2008

MS LESSING

Applicant

And

MR MANNING

Respondent

REASONS FOR JUDGMENT

1. I provide the following oral reasons in the matter of Lessing & Manning dealing with costs issues.  On 26 May 2011, the parents entered into consent orders settling issues in relation to their children.  The dispute between them would be characterised on any objective basis as an intense and bitter one.  This is plainly apparent from the material filed by both parents in the substantive proceedings, and also in the present context of a costs application.  This case has all the indicia of an intractable parental conflict.  Thus, for example, on 28 July 2011, two months after the final orders, the father filed a contravention application alleging a number of contraventions, the first of which was said to have occurred on 2 June, just a few days after the orders were made.  This matter is apparently before the Court today.

2. It has now been drawn to my attention that on 26 September, the mother filed an application in a case which is apparently also returnable before me today, in which she seeks a suspension of the orders that were made by consent for the preparation of a further report, etcetera.  The flavour of this matter is plainly apparent.  I refer to this simply because it sets the context for the present applications. 

3. An application for costs is governed by section 117 of the Family Law Act. The general proposition is that each parent should pay and bear their own costs, however, the Act goes on to specify the circumstances when costs should be paid.

4. There are two applications before me:  firstly, the ICL seeks costs of $4169.20 from each party, and then the mother seeks costs as well.  The Independent Children’s Lawyer, mother and father have filed written submissions.  I accept as a general proposition the Independent Children’s Lawyer’s submissions that unless his costs, or the Commission’s costs are paid, the costs of child representation are then required to be met from finite resources of Legal Aid funds (s.117(2A)(b) and (g)).  I further accept the Independent Children’s Lawyer’s submission that, in effect, even if I make an order for costs, the parents may seek a waiver from the Legal Aid Commission based on their financial circumstances.

5. I also accept the submission of the Independent Children’s Lawyer that the community should not have to solely bear the costs of representation of children of litigious parents (s.117(2A)(b) and (g)).  Let there be no misunderstanding:  the parents in this case fall within that category.  It is interesting to read the submissions of both the mother and the father on the issue of costs.  Those submissions are primarily focused on laying blame at each other’s feet.  Neither parent shows the slightest insight into their own actions and how they have contributed in some way to the present situation.  Each also pleads that they can’t afford to pay an order for costs.

6. Whether or not a party’s financial circumstances contraindicates a costs order is merely one factor that I am required to take into account under s.117(2A)(a). I think that the submissions of the Independent Children’s Lawyer are so compelling that the public interest justifies making an order for costs as sought. If the parents cannot pay, they can take this up with the Legal Aid Commission. Perhaps they will think more closely about the costs consequences before they commence and continue litigation that was unnecessary and quite disproportionate to the issues before the Court. I order both parents to pay to the Legal Aid Commission $4169.20 within 42 days, subject to any waiver being granted by the said commission.

7. In relation to the other costs application, I decline to make an order for costs. Given the costs order I have already made to the Commission, I am satisfied that this will cause the depletion to their financial resources: s.117(2A)(a). In any event, in the circumstances of this case, to reward one parent with a costs order would, in my opinion, merely pour fuel on the fire that is the litigation in this case. It is not in the children’s best interest: s.117(2A)(a). It is not appropriate. I decline to make a costs order as between the parties.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date:  7^th October 2011