Lukes Law and Collins and Anor

[2008] FamCA 969

FAMILY COURT OF AUSTRALIA

LUKES LAW & COLLINS AND ANOR [2008] FamCA 969

FAMILY LAW – COSTS – costs of Independent Children’s Lawyer – circumstances of appointment – husband says he proceeded with the litigation on the understanding he was not liable to contribute to the fees of the Independent Children’s Lawyer – financial circumstances of the parties

Family Law Act 1975 (Cth)

Penfold and Penfold (1980) 144 CLR 311
Cassidy JP and Murray BR (1995) 124 FLR 267
Re David (costs) (1998) FLC 92-809

APPLICANT LUKES LAW

FIRST RESPONDENT: Mr Collins

SECOND RESPONDENT: Ms Denny

FILE NUMBER: SYF 531 of 2005

DATE DELIVERED: 7 November 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

DEALT WITH IN CHAMBERS BY WRITTEN SUBMISSIONS:

REPRESENTATION

APPLICANT: Ms Luke, Solicitor, submitted on behalf of the applicant/Independent Children’s Lawyer

RESPONDENT: Mr Kearney, Counsel, submitted on behalf of the respondent/husband

RESPONDENT: Ms Rossi, Solicitor, submitted on behalf of the respondent/wife

Orders

1. The costs of the Independent Children’s Lawyer payable by the parties is assessed by me in the sum of $5,193 and is to be paid equally by the husband and the wife in these proceedings within 28 days of the resolution of their property proceedings.

2. The husband and the wife and each of them notify the Independent Children’s Lawyer of the resolution of the proceedings, whether by order or agreement.

IT IS NOTED that publication of this judgment under the pseudonym Lukes Law and Collins 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: SYF 3250  of 2006

LUKES LAW

Applicant Independent Children’s Lawyer

And

MR COLLINS

First Respondent husband

And

MS DENNY

Second Respondent wife

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application by the Independent Children’s Lawyer in which she seeks an order for the payment of her costs in certain proceedings between the husband and the wife in which the care of their children was litigated.  The orders sought are opposed by each of the husband and wife and, in the event that an order is made, each of them suggests that the costs should be borne by the other.

2. The threshold issue therefore is whether, in the circumstances of this case, any such order should be made and, in the event that it is made, in what proportions, if any, the parties should share in those costs.

Background facts

1. The parties on the husband’s assertion separated in 2003, and on the wife’s assertion in 2005.

2. Proceedings were commenced between the parties concerning the care of their children on 19 December 2005.

3. The husband asserts that pre action procedures were not followed and the wife asserts that she fell within an exception to the requirement for them by reason of the violence of the husband.

4. In her application the wife sought the following orders in relation to parenting, in her Further Amended Initiating Application filed 13 March 2008:

   “1.      That all previous parenting orders be discharged.

   2.That the Wife have sole parental responsibility of the child namely […] born […] February, 1993.

   3.That the child live with the Wife.

   4.That the child spend time with the father in accordance with her wishes.”

5. In the husband’s Amended Response to an Application for Final Orders filed

   
   15 November 2006

   he sought in relation to the same issues the following orders:

   “1.      That the previous Parenting Orders be discharged.

   2.That the child of the marriage […] born the […] February, 1983 live with the husband:

   2.1 From 8.pm Sunday to 8.pm the following Sunday each alternate week.

   2.2 For one half of the April, June/July and September school holiday periods as may be agreed between the parties and where there is no agreement the second half of those school holiday periods.

   2.3 For one half of the Christmas school holiday periods alternating between the first half of the Christmas school holiday period in odd numbered years and the second half of the Christmas school holiday period in even numbered years

   and otherwise the child live with the mother.”

6. By order of the Court made, the husband avers, against the objection of the husband, a child representative (as the position was then known) was appointed as the Independent Children’s Lawyer.

7. The evidence is that the husband received in March 2006 a letter making a claim for one half of the basic composite amount of fees from the Independent Children’s Lawyer.

8. The husband asserts that he did not know until then that he had to pay for the appointed lawyer and made application to the Legal Aid Commission for waiver of payment of his contribution.

9. The waiver was granted on 29 August 2006 and specified that the husband was not obliged to pay a share of the fees of the Independent Children’s Lawyer nor the costs of the independent expert.

10. The husband makes assertions that he inquired prior to receipt of this letter of the Independent Children’s Lawyer what fees, if any, he was obliged to pay and received no response. Once the waiver had been received the husband proceeded with the litigation on the basis that he was not liable to contribute towards the fees.

11. This position was however short-lived and the Legal Aid Commission in October 2006 informed the husband that its decision had been reviewed and that he would be obliged to pay fees.

12. On 4 October 2006 the wife filed an amended application in which significantly she sought an order that prior orders be discharged and that the child the subject of the dispute reside with her and that the child spend time with the husband in accordance with her wishes.

13. The husband’s response by letter to the mother’s solicitor, was to seek a set of consent orders which reflected that order sought by the wife and proposed that the orders be made when the matter was next before the Court.  He avers that at no time did he withdraw the proposal that the parties enter into consent orders in those terms.

14. The matter was not settled and the wife informed the husband in June 2007 that she now sought an order for sole parental responsibility.  This order was sought notwithstanding that an application for a similar order on an interim basis was dismissed.  There had, until June 2007, been no notice of any such application given to the husband, however an amended application claiming orders to this effect was filed on 21 August 2007.

15. The final orders made by the Court approximated the orders which were proposed in the first instance by the husband in March 2007 and were made by consent on 7 May 2008.

16. The wife asserts that the child representative was appointed following the recommendation of a child dispute counsellor and was not to her recall against the objection of the husband.  On this issue I think that the husband’s version of events, namely that he did object, is the more likely to be correct.  It would be consistent with the attitude of the husband expressed in correspondence.

17. The wife sets forth in her affidavit lodged in this application that the waiver that the husband procured from the Legal Aid Commission was procured on false information.  The wife’s allegation in this regard is not without some apparent support in the documents attached to her affidavit.  However, this is a matter in issue and where the parties are not cross examined, I think a finding on that allegation at this time, given its very serious nature, would be wrong and I do not make one.  In any event, I do not think that the matter is particularly relevant to the issues that I have to here determine.

18. The wife deposes that the Family Report procured in this matter was released in March 2007, and it was following that report, and given the fact that the relationship was said by her to be acrimonious, she felt it appropriate that the order not be silent on the issue of parental responsibility, given the difficulties in inter parent communication and co-operation as seen by her.  She subsequently thought she could live with the order which was made and referred to and agreement was reached between the parties.

Section 117 considerations

1. The Court has a broad discretion as to the orders that it makes for costs and that discretion is set out in section 117(2) of the Act and considered in Penfold and Penfold (1980) 144 CLR 311.  In the consideration of the exercise of that discretion I am obliged to consider the matters set out in section 117(2A) of the Act.  Those matters are set out in the following sub lettered sub sections of that section namely:

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

1. It seems to me that each of the parties has or will have sufficient financial resources to meet any order for costs that I decide to make upon the finalisation of the proceedings for alteration of property interests presently listed for determination and I intend to make any such order payable at that time.

(b)    whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party

1. Neither the husband nor the wife is so far as I am aware in receipt of legal aid.  The Independent Children’s Lawyer is funded by legal aid funds drawn in the words of the authorities from finite resources (Re David (costs) 1998 FLC
   ¶92-809).

(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 answer questions, admissions of facts, production of documents and similar matters

1. It seems to me that nothing in the submissions made by the parties would in my view be determinative of these issues.  Upon a consideration of the allegations and counter allegations, I find that none of the parties were model litigants.

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

1. This consideration is not applicable.

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

1. The matter was resolved by consent.  The father did not gain what he originally sought but the result was close to a proposal for settlement he made and which ultimately was reflected in the order.

(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

1. I have referred to the various offers which were made and accepted and the terms of the later resolution of the matter, and I take them into account.

(g)    such other matters as the Court considers relevant

1. This is not a claim for costs as between the husband and the wife.  It is a claim by the Independent Children’s Lawyer pursuant to the requirements of her mandate which is no doubt designed to restrain an otherwise uninhibited outflow of finite legal aid funds.

2. There are a number of issues for me to determine namely:

   a)Should any order be made for costs in favour of the Independent Children’s Lawyer;

   b)If so, what should be the amount payable if I intend to determine any amount precisely at all;

   c)In what proportions should the parties pay and bear those costs; and

   d)When should they be paid.

3. An Independent Children’s Lawyer is appointed pursuant to an order of the Court.  To the extent that the husband submits that his opposition to the appointment renders him entitled to have no obligation in costs to the lawyer, is rejected.  The appointment of such a lawyer is to provide to the Court a voice advocating for the child’s best interests.

4. On the one hand, in a very real sense, the community gains benefit from these appointments.  They assist often in the early resolution of matters and bring an independent voice to proceedings on behalf of a child’s interests;  interests which are so often drowned or disregarded in the cacophony of emotional and non child focussed inter parental dispute.

5. On the other hand, the child is also very often assisted by such representation of his or her best interests, and a consequential early resolution of proceedings.  In a real sense the cost of the lawyer is a cost of maintaining that child’s best interests;  a cost which, like protection or education or the more mundane costs of life, is a part of the child’s real needs.  Like the other costs of children they are a responsibility of their progenitors and a burden which that role requires them to meet.

6. Given that the role of the Independent Children’s Lawyer is to serve both the interests of the community in dispute resolution and the child’s best interests, I determine in this case that the community will share the costs of the representation.  As between the parents, I believe that they should share the balance of the costs equally, but on the basis that they be paid at a time when there can be less doubt about their capacity to pay.

7. I accordingly make the orders set forth above.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler

Associate: 

Date:  7 November 2008