Liston and Liston

[2017] FamCA 1125

FAMILY COURT OF AUSTRALIA

LISTON & LISTON [2017] FamCA 1125

FAMILY LAW – COSTS – Application for costs order by Independent Children’s Lawyer – Discussion of general principles – Where mother consents to order as to payment of one half of ICL costs – Where objects to order that he pay one half – Where father in employment – Where no submission by father as to hardship – Where order made for father to pay one half of Independent Children’s Lawyer’s costs.

Family Law Act 1975 (Cth) s 117

De Roma (2013) FamCA 566
Gahen No 2 (2013) FamCA 936

APPLICANT: Mr Liston

RESPONDENT: Ms Liston

INDEPENDENT CHILDREN’S LAWYER: Ms Tran

FILE NUMBER: PAC 3924 of 2015

DATE DELIVERED: 5 December 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 5 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenny

SOLICITOR FOR THE APPLICANT: Michael Jokovic & Associates

COUNSEL FOR THE RESPONDENT: Ms Winfield

SOLICITOR FOR THE RESPONDENT: Jacqui Griffin Mobile Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tran of Legal Aid NSW Parramatta Family Law

Orders

1. That the father pay the balance of his contribution to the Independent Children’s Lawyer’s costs in the sum of $2,853.50 within two (2) months to Legal Aid NSW or within such further period as may be agreed between the father and Legal Aid NSW.

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 Liston & Liston 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 PARRAMATTA

FILE NUMBER: PAC 3924  of 2015

Mr Liston

Applicant

And

Ms Liston

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Firstly, an order will be made by consent that the mother pay her portion of the Independent Children's Lawyer’s costs in the sum of $2,853.50 to Legal Aid New South Wales within two months from this date, or within such further or other time as agreed between the mother and Legal Aid New South Wales. 

2. Otherwise, in relation to the father’s obligation and the submissions of Mr Kenny as to the Independent Children’s Lawyer’s costs at the conclusion of this trial, the Independent Children’s Lawyer sought an order that the mother and father pay equally the balance of the Independent Children’s Lawyer’s costs after deduction of their initial contributions as paid. 

3. The mother has consented to an order that she pay her one half contribution in the sum of $2,853.50.  The father opposes any order for payment. 

4. The law as to costs is well settled. 

5. Section 117 of the Act provides that subject to certain qualifications each party shall bear his or her own costs. 

6. Section 117(2) provides that if the Court is of the opinion there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just. 

7. The relevant considerations in relation to an order for costs are set out at s 117(2A) as follows:

   a)the financial circumstances of each of the parties to the proceedings;

   b)whether any party has legal aid and the terms of any grant of aid;

   c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;

   d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   g)such other matters as the Court considers relevant.

8. Section 117(5) provides that 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. 

9. A question arises as to the actual meaning of the legislation for the Court of the words “to disregard the Legal Aid funding” of the Independent Children’s Lawyer because that terminology is susceptible to ambiguity. 

10. As opined by Austin J in Gahen No 2 (2013) FamCA 936, it could conceivably mean either (a) that the Independent Children's Lawyer should be presumed to be underfunded so as to generally incline the Court to order the parties’ contribution to the Independent Children’s Lawyer’s costs, or (b) the Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children’s Lawyer’s Legal Aid funding when determining whether to order the parties’ contribution to the Independent Children's Lawyer’s costs.

11. In De Roma (2013) FamCA 566, Watts J explained why the former is the preferred connotation since the purposes of the legislative provision was to protect the public purse.

12. The threshold presumption as to each party bearing their own costs has no application to the Independent Children’s Lawyer who is not a party.  The law is well-settled; there is power under the section subject to other statutory provisions referred to below to make orders for or against the Independent Children’s Lawyer, and the Court may make such order as to costs of the Independent Children’s Lawyer and in such proportions in relation to each of the parties as the Court considers just. 

13. Section 117(3) provides:

    To avoid doubt, in proceedings in which the independent children's lawyer for a child has been appeared, 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.

14. However, section 117(4) provides:

    However, in proceedings in which an independent children's lawyer for a child has been appointed, if a party to the proceedings has received legal aid in respect of the proceedings or the Court considers that a party to the proceedings would suffer financial hardship if the party had to bear a portion 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.

15. Both parties in these proceedings are privately funded.  The mother has agreed to pay her half of the Independent Children’s Lawyer’s costs and the Independent Children’s Lawyer seeks the payment of the remaining half from the father. 

16. The circumstances are such that s 117(4) has no application.  There is no submission on behalf of the father that he would suffer hardship in the event that an order was made, particularly bearing in mind the provisions set out in consent orders made as to property between the parties where the father is to receive a significant capital sum. 

17. As to the other considerations, the financial circumstances of the father are indicative of a capacity to meet the modest further contributions sought by the Independent Children's Lawyer. 

18. Neither party is in receipt of a grant of Legal Aid. 

19. The issue contended as to the conduct of the proceedings generally, although it was submitted by Mr Kenny of counsel on behalf of the father that he has made significant concessions in the light of the matters contained in the single expert’s report.  In response to that submission, it is the Court’s view the mother herself has made very significant concessions in relation to the orders that she has agreed to in relation to the father’s time.

20. There has been relevantly no failure to comply with Court orders. 

21. Neither party has been completely unsuccessful or indeed successful in these proceedings; indeed, orders have been made in the best interests of the children. 

22. The participation of the Independent Children’s Lawyer in these proceedings has been productive in ultimately determining appropriate orders to be made. 

23. In all of the circumstances, it is considered appropriate that the father pay the balance of his contribution in relation to the Independent Children's Lawyer’s costs.

24. An order will be made accordingly.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 5 December 2017.

Associate: 

Date:  5 December 2017