Malcolm & Pereira (No 2)

Case [2025] FedCFamC1F 345

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Malcolm & Pereira (No 2) [2025] FedCFamC1F 345

File number(s): PAC 2118 of 2023
Judgment of: ANDERSON J
Date of judgment: 22 May 2025
Catchwords: FAMILY LAW – COSTS – Where the Independent Children’s Lawyer made an application to the Court for the parties to equally share in the costs of the Independent Children’s Lawyer – Where the Court grants the application for costs but finds that it would not be just for the parties to share the costs of the Independent Children’s Lawyer on an equal basis
Legislation: Family Law Act 1975 (Cth) s 117
Cases cited:

CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 67

Cross v Beaumont (2008) 39 Fam LR 386

De Roma v De Roma (2013) 49 Fam LR 266 at [12]

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 191 FLR 294 at 130

Hawkins & Roe (2012) 47 FamLR 526 at [161]

Hitch & Hitch (2012) 47 FamLR 603

I and I (No 2) (1995) FLC 92-625

Marinko & Marinko (1983) FLC 91-307

Nardini & Legal Aid NSW [2019] FamCA 340

Robinson & Higginbotham (1991) FamCA 4
Division: Division 1 First Instance
Number of paragraphs: 35
Date of last submission/s: 20 May 2025
Date of hearing: 17-21 February 2025 & 26 February 2025
Place: Parramatta
Counsel for the Applicant: Mr Cohen
Solicitor for the Applicant: Gad & Co Lawyers
Counsel for the Respondent: Mr Schroder
Solicitor for the Respondent: Du and Associates
Counsel for the Independent Children’s Lawyer: Mr MacPherson
Solicitor for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

PAC 2118 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MALCOLM

Applicant
AND:

MS PEREIRA

Respondent
AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

22 MAY 2025

THE COURT ORDERS THAT:

1.Within 28 days of the date of these orders, the father is to pay Legal Aid New South Wales the sum of $13,507.12 being his share of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties.

2.Within 28 days of the date of these orders, the mother is to pay Legal Aid New South Wales the sum of $4,502.37 being her share of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties.

3.The operation of Order 1 and Order 2 are stayed pending determination of the Appeal filed by the father on 6 May 2025.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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AGLC
Malcolm & Pereira (No 2) [2025] FedCFamC1F 345
Case
[2025] FedCFamC1F 345
Decision Date

CaseChat Overview and Summary

In the matter of PAC 2118 of 2023, the Federal Circuit and Family Court of Australia (Division 1) heard an application by the Independent Children’s Lawyer (ICL) for costs following protracted and complex parenting proceedings between Mr Malcolm and Ms Pereira. The ICL had played a significant role in the proceedings, including by cross-examining the parties and experts, and formulating a position in the best interests of the children. The court was required to determine the appropriate allocation of costs between the parties and whether the ICL's costs should be shared equally or distributed differently based on the circumstances.

The court considered the roles and contributions of the ICL in the proceedings, the financial circumstances of the parties, and whether any party was receiving legal aid. The judge found that both parties had benefited significantly from the ICL's assistance. However, the court also considered the conduct of the father, who had protracted the trial and exhibited a lack of insight regarding the consequences of his application. The court concluded that while the ICL's costs should not be shared equally, it was just for them to be divided on a 75:25 basis in favour of the wife, with the father paying $13,507.12 and the mother paying $4,502.37. The judge's decision was informed by the principles set out in CDJ v VAJ and Stoian & Flemming (Costs).

The court ultimately ordered that Mr Malcolm pay $13,507.12 and Ms Pereira pay $4,502.37 to Legal Aid New South Wales within 28 days of the order, with the operation of these orders stayed pending the outcome of the father's appeal. The form of the order was subject to review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

PAC 2118 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MALCOLM

Applicant

AND:

MS PEREIRA

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

22 MAY 2025

THE COURT ORDERS THAT:

1. Within 28 days of the date of these orders, the father is to pay Legal Aid New South Wales the sum of $13,507.12 being his share of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties.

2. Within 28 days of the date of these orders, the mother is to pay Legal Aid New South Wales the sum of $4,502.37 being her share of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties.

3. The operation of Order 1 and Order 2 are stayed pending determination of the Appeal filed by the father on 6 May 2025.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Each party has been afforded a significant benefit in these proceedings from the assistance of the Independent Children’s Lawyer. For reasons that I have explained above, this is an additional factor that I have considered under s 117(2A)(g) of the Act, by reference to the decision of Kirby J in CDJ v VAJ.CONCLUSION For the reasons described above, I consider it is appropriate to make an order for costs in favour of the Independent Children’s Lawyer. Pursuant to Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, I am permitted to make an order that the Independent Children’s Lawyer be paid her costs fixed in a specific amount. Having regard to the principles referred to by Kent J in Stoian & Flemming (Costs)[35], I am satisfied that the costs figure sought by the ICL is logical, fair and reasonable. When arriving at this conclusion, I remind myself that the Independent Children’s Lawyer was engaged in the proceedings between June 2023 and 22 April 2025.[35] Stoian & Flemming (Costs) [2014] FamCA 944, paragraph 91. The Costs Notice filed by the Independent Children’s Lawyer on 26 February 2025 identifies that save for a sum of $2,541, the costs of the Independent Children’s Lawyer were incurred to prepare for and attend at trial. The trial itself was protracted because of the behaviour of the father and his advisors. If I had not been persuaded that each party benefited from the assistance provided by the Independent Children’s Lawyer, I would have considered making an order that the costs of the Independent Children’s Lawyer be paid solely by the father. Having said this, and for the reasons described above, I do not consider it to be just that the costs of the Independent Children’s Lawyer be shared equally between the parties. I find that it is just for the costs of the Independent Children’s Lawyer to be divided on a 75:25 basis in favour of the wife such that the father pay a sum of $13,507.12 and the mother pay the remaining sum of $4,502.37.

Ratio Decidendi

Legal Principle Established

At paragraph 22 of his decision, the Deputy Chief Justice referred to the decision of Kirby J in the matter of CDJ v VAJ (No 2) (1998) 197 CLR 172 (“CDJ v VAJ”), where his Honour said at [11]:The children’s representative has a duty to “act in an independent and unfettered way in the best interests of the child”. This duty carries over to an appeal. The interests of the children and their welfare is of concern to the public. Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this court. (References omitted)CONSIDERATION The Independent Children’s Lawyer submits that she played a pivotal role in the final hearing. I agree with that submission for the following reasons:(a)The Independent Children’s Lawyer met with the children on 6 February 2025;[9](b)The Independent Children’s Lawyer formulated a position and expressed that position by her Case Outline prepared in preparation for the trial;[10](c)Counsel for the Independent Children’s Lawyer cross-examined the father at length with respect to any proposal to be put by him in the alternative to the terms of his Amended Initiating Application.[11] I was grateful for such assistance in circumstances where for the reasons identified in my primary judgment, the terms of the father’s application were deficient and caused me significant concern.[12] I recognised the efforts of counsel for the Independent Children’s Lawyer at [151] of my reasons for judgment wherein I say:Cross examination of the father by the Independent Children’s Lawyer also highlighted a remarkable lack of insight by the father as to the consequences of his application and the difficulties, which he and the children might face.(d)Counsel for the Independent Children’s Lawyer cross-examined each of the parties about events, which occurred on 24 July 2019. As will be evident from my primary judgment, the events, which occurred that day merited careful examination;[13](e)Counsel for the Independent Children’s Lawyer cross-examined the father in detail about the consequences of his application and the difficulties, which he and the children might face if such an application was successful;[14](f)Counsel for the Independent Children’s Lawyer carefully cross-examined the Court Child Expert with respect to the father’s assertion that the mother had influenced the children’s views such that they did not want to spend any time with the father;[15] and(g)Counsel for the Independent Children’s Lawyer methodically cross-examined the Court Child Expert with respect to the orders, which I might make the in children’s best interests.[16]The financial circumstances of each of the parties to the proceedings and 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[9] Outline of Case Document filed 10 February 2025.[10] Malcolm v Periera [2025] FedCFamC1F 256 at [34].[11] Malcolm v Periera [2025] FedCFamC1F 256 at [53] and [55].[12] Malcolm v Periera [2025] FedCFamC1F 256 at [26], [27] and [29].[13] Malcolm v Periera [2025] FedCFamC1F 256 at [122].[14] Malcolm v Periera [2025] FedCFamC1F 256 at [151][15] Malcom v Periera [2025] FedCFamC1F 256 at [171][16] Malcolm v Periera [2025] FedCFamC1F 256 at [185]