LESSING & MANNING
[2013] FMCAfam 115
•13 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LESSING & MANNING | [2013] FMCAfam 115 |
| FAMILY LAW – Parenting proceedings – application for costs by independent children’s lawyer – consideration of statutory provisions – question of hardship considered – application dismissed. |
| Family Law Act 1975, s.117 |
| Kest & Olsson [2012] FamCA 148 |
| Applicant: | MS LESSING |
| Respondent: | MR MANNING |
| File Number: | SYC 6011 of 2008 |
| Judgment of: | Foster FM |
| Hearing date: | 13 November 2012 |
| Date of Last Submission: | 25 January 2013 |
| Delivered at: | Wollongong |
| Delivered on: | 13 February 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Fulcrum Legal |
| Solicitors for the Respondent: | DGB Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Mark Whelan Lawyers |
ORDERS
That the Independent Children’s Lawyers application for costs be dismissed.
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 WOLLONGONG |
SYC 6011 of 2008
| MS LESSING |
Applicant
And
| MR MANNING |
Respondent
REASONS FOR JUDGMENT
Proceedings
This is an application for costs arising out of parenting proceedings between the applicant mother and the respondent father in respect of the children [X] now aged 10 and [Y] now aged eight.
The application for determination is an application for costs sought by the independent children’s lawyer subsequent to final parenting orders are being made by consent on 13 November 2012.
Final parenting orders in summary provided that all previous parenting orders be discharged, that the mother have sole parental responsibility for the children, that the children live with the mother, that the father confer with the children’s counsellor in circumstances whereby thereafter he is to spend no face-to-face time with the children.
As a consequence of the final orders that have been made it is self-evident that issues before the court in relation to the children were difficult and proceedings have been before the court in one way or another since 2008.
On 26 May 2011 final orders in relation to the children were made by consent. Those orders provided in summary that the parties have equal shared parental responsibility, that the children live with the mother and that the children spend time with the father on alternate weekends during school term, and overnight in the other week half of school holidays, Father’s Day and at other times by agreement.
Subsequent to those final orders the court ordered on 7 October 2011 that the parties were to pay the independent children’s lawyers costs assessed in the sum of $4,169.20 each. There is no doubt that during the course of the previous proceedings the independent children’s lawyer played a significant role.
On 7 October 2011 further proceedings in relation to the children were again before the court. Those proceedings were adjourned for hearing to 20 April 2012 on the threshold issue and in relation to an application for contravention.
On 11 November 2011 an order appointing an independent children’s lawyer in relation to the fresh proceedings was made and proceedings were adjourned to 22 December 2011. Subsequently on 29 November 2011 by consent the Court made orders for the children to spend time with the father for three hours each Saturday and for the parties to attend upon the Catholic Care Contact Centre to complete intake procedures for that centre. Proceedings were adjourned to 22 December 2011.
On 22 December 2011 further orders were made by consent that continued the children’s time with the father on a restricted but unsupervised basis. Proceedings were thereupon adjourned to 17 February 2012.
On 17 February 2012 an order was made for the appointment of a single expert for the purposes of a report being made available to the court. The independent children’s lawyer was to provide appropriate instructions to the single expert. The father’s restricted time with the children was continued. The matter was adjourned for further directions following release of the single expert report to 16 May 2012.
On 15 May 2012 the single expert’s report was released and on 16 May proceedings were adjourned to 21 May to facilitate the parties considering the recommendations made in the report. On 21 May proceedings were adjourned for hearing allocating three days plus for trial to Monday, 19 November 2012 and pending further order the children’s time with the father was suspended.
On 26 September 2012 the matter was listed again for directions and the trial dates were confirmed.
Subsequently the parties filed terms of settlement in the registry with those terms being approved and signed by the independent children’s lawyer. On 13 November 2012 the court made final orders by consent as referred to above.
The Law: ICL Costs
As was observed by Dawe J. in Kest & Olsson [2012] FamCA 148:
“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 (Cwth) (“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.”
S.117(4) provides:
“(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.”
The independent children’s lawyer seeks an order for costs in the sum of $5,666.
Subject to the particular statutory considerations referred to above the court is required to consider the various factors set out in section 117(2A) of the Act.
Most relevantly those factors include the financial circumstances of each of the parties to the proceedings.
The father is in receipt of a taxable income of approximately $80,000 per annum. He owns no assets of any significance save for items of personalty and has outstanding personal liability commitments. After reasonable living expenses and child support he has little each week in terms of a surplus. He has a significant liability for funds borrowed for legal costs.
The mother is not in employment and lives in a defacto relationship. Her partner supports her and indirectly the subject children. Her sworn financial statement reveals that she has a significant liability for outstanding legal costs including it appears an outstanding liability to legal aid as to the independent children’s lawyer’s costs in the earlier proceedings.
In all the circumstances the court considers that the parties would suffer hardship if a further order for costs was made.
The court in that circumstance must not make an order for costs in relation to the independent children’s lawyer.
It is of no utility in considering the remaining statutory considerations.
Accordingly the application is dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Foster FM
Associate:
Date: 13 February 2013
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