Malcolm & Pereira (No 2)
[2025] FedCFamC1F 345
•22 May 2025
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).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Malcolm & Pereira has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ANDERSON J
The substantive proceedings between the applicant father (“the father”) and the respondent mother (“the mother”) were finalised when I delivered my reasons for judgment on 22 April 2005: Malcolm & Pereira [2025] FedCFamC1F 256.
This judgment deals solely with a costs order sought by the Independent Children’s Lawyer.
Pursuant to Orders 7 and 8 of my judgment:
(a)The Independent Children’s Lawyer served Written Submissions with respect to her application for costs on 5 May 2025; and
(b)The mother filed and served a Written Submission in reply on 12 May 2025.
The father for reasons not explained by him failed to provide any submissions until 20 May 2025. Notwithstanding the failure by the father’s counsel to comply with my orders, I have taken his submissions into account.
The substantive proceedings concerned the parties’ two children, namely, a male child aged ten years, and a female child aged eight years. During the proceedings, the mother made several and grave allegations against the father. The allegations included but were not limited to physical and sexual assault of the mother, sexual assault of the male child and inappropriate and sexual behaviour towards the children.
In June 2023, a Judicial Registrar determined that the multifaceted allegations made by the mother and the issues in dispute between the parties required the appointment of a separate representative to advocate for the children. This being so, the Court had the benefit of the assistance of an Independent Children’s Lawyer from June 2023 when Legal Aid New South Wales filed a Notice of Address for Service until I discharged the appointment of the Independent Children’s Lawyer on 22 April 2025.
ORDERS SOUGHT
The Independent Children’s Lawyer has made an application for costs pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”). Particularly, the Independent Children’s Lawyer seeks a total sum of $18,009.50 including GST[1] with such sum to be paid on an equal basis by the parties. This being so, the Independent Children’s Lawyer invites me to make an order that each party pay a sum of $9,004.75 with such sum to be paid within 28 days of any orders made by me or alternatively, within six months of any order to be made by me.[2]
[1] Costs Notice filed by the ICL on 26 February 2025.
[2] Written Submissions of ICL dated 5 May 2025, paragraphs 22 and 25.
It is submitted by the mother that that the Court ought not exercise its discretion and make an order for the costs of the Independent Children’s Lawyer to be paid by her as it is not just having regard to the relevant matters under section 117(2) of the Act.[3]
[3] Written Submissions of the Respondent Mother filed 12 May 2025, paragraph 2.
It is submitted by the father that the Application for Cost made by the ICL should be dismissed.[4]
[4] Written Submissions of the Applicant father dated 19 May 2025, paragraphs 10 and 11.
LEGAL PRINCIPLES
Section 117(1) of the Act abolishes for the purposes of family law proceedings, the general rule that, in civil proceedings, costs follow the event. It provides that each party should bear his or her own costs in such proceedings. It is well-established that s 117(1) of the Act does not create a starting point, which applies to the application that has been made by the Independent Children’s Lawyer in this case[5].
[5] De Roma v De Roma (2013) 49 Fam LR 266, paragraph 12.
However, ss 117(3) and (4) of the Act enable the Court to make orders for the costs of an Independent Children’s Lawyer:
(3)To avoid doubt, in proceedings in which 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.
(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 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.
Accordingly, and with respect to the application made by the separate representative, it is only a question of discretion and whether that discretion should be exercised. Section 117(2) of the Act makes that clear[6] and reads as follows:
If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4),(4A), (5)and (6) and the applicable rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
[6] Re P (a child); Separate Representative (1993) 16 Fam LR 485.
When considering what order (if any) is just, the legislation mandates that the court have regard to those matters set out in s 117(2A) of the Act. None of those seven matters is determinative. However, the Court must consider each matter in the seven alphabetical subsections of s 117(2A).[7] There is nothing to prevent any factor being the sole foundation for any order for costs being made.[8]
[7] I and I (No 2) (1995) FLC 92-625; Hitch & Hitch (2012) 47 FamLR 603.
[8] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & another (2005) 33 Fam LR 123 at 130.
Section 117(2A) of the Act provides that when considering what costs order (if any) should be made, the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(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;
(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;
(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.
In the matter of Nardini & Legal Aid NSW [2019] FamCA 340, the Deputy Chief Justice considered issues relevant to the payment of costs of the Independent Children’s Lawyer. Particularly, his Honour said as follows:
22.In terms of s 117(2A)(g), it is relevant that the role played by the ICL in parenting proceedings, including in this matter, is invaluable. The role of the ICL was summarised in the context of an application for costs in proceedings before the High Court of Australia in CDJ v VAJ (No 2) (1998) 197 CLR 172. Specifically, at [11], Kirby J said:
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].
23.I accept that it is in the public interest for the best interests of children to be represented in proceedings before this Court and that the Court invariably receives substantial assistance, in that regard, from ICLs appointed in parenting proceedings. Such assistance was undoubtedly provided by the ICL in this case.
24.Also relevant to these proceedings is s 117(5) of the Act, which provides:
(5)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.
25.Accordingly, it is my view that the ICL should be presumed to be unfunded and, having regard to authority, in those circumstances, the Court is generally inclined to order litigants to contribute to the ICL’s costs: Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma [2013] FamCA 566.
26.Further, I note that the ICL has sought an order for costs to be paid by the mother in a lump sum amount. Those costs have been itemised in a schedule provided by the ICL to the Court and the mother at the hearing on 20 May 2019.
27.Pursuant to rule 19.18(1)(a) of the Family Law Rules 2004 (Cth), the Court may make an order for costs of a specific amount. Having regard to the principles adumbrated by Kent J in Stoian & Flemming (Costs) [2014] FamCA 944 at [91], I am satisfied that the costs figure sought by the ICL is logical, fair and reasonable. I will, therefore, make an order for costs in favour of the ICL in the sum of $14,903.70, being 50 per cent of the total costs incurred by the ICL in this matter.
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]
In terms of capacity to pay, I appreciate that the litigation has been a burden on the parties. Prior to his receipt of funding under the Family Violence and Cross-Examination of Parties Scheme, the father’s Costs Notice filed on 14 February 2025 identifies that he was indebted to his solicitor by a sum of about $10,000. The father incurred costs of $17,517 prior to the engagement of his current solicitor.[17] For her part, and on 14 February 2025, the mother’s legal representatives filed a Costs Notice disclosing that the mother had paid to them a sum of $60,887 and a further sum of $34,113, which was held in her solicitor’s trust account. It is submitted by the Independent Children’s Lawyer that the mother has received financial assistance in relation to her legal fees.[18] This must necessarily be so. Indeed, at Part K of her Financial Statement filed on 1 September 2023, the mother refers to a personal loan being for legal fees.
[17] Costs Notice filed on
[18] Written Submissions of ICL dated 5 May 2025, paragraph 15.
The father is employed as a professional by a manufacturing company and as at September 2023, he earned a weekly income of $2,053 per week.[19] The Independent Children’s Lawyer submitted that I could not fully consider the father’s financial circumstances absent the filing of an updated financial statement.[20] However, and as highlighted by counsel for the mother, the father by his affidavit filed on 8 February 2025 deposed to earning a sum of $101,000 per annum.[21]
[19] Written Submissions of ICL dated 5 May 2025, paragraph 14; Father’s Financial Statement filed on 1 September 2023.
[20]. Written Submissions of ICL dated 5 May 2025, paragraph 14; Written Submissions of Respondent Mother filed 12 May 2025, paragraph 3 (a)(v)(b).
[21]. Written Submissions of Respondent Mother filed 12 May 2025, paragraph 3 (a)(v)(b); Father’s affidavit filed 8 February 2025, paragraph 3.
The mother is unemployed and devotes herself to the care of the children.[22] The mother filed a Financial Statement on 1 September 2023, which disclosed a weekly income of $325 being comprised of Family Tax Benefits.[23] She has modest assets of $10,109 and she has no superannuation.[24] Accordingly, and without hesitation, I accept the submission of the mother’s counsel that the father is in a superior financial position to the mother.[25]
[22] Written Submissions of ICL dated 5 May 2025, paragraph 15; Written Submissions of Respondent Mother filed 12 May 2025, paragraph 3(a); Mother’s Affidavit filed 3 September 2025, paragraph 3.
[23] Written Submissions of Respondent Mother filed 12 May 2025, paragraph 3 (a)(ii) and (iii); Financial Statement filed on 1 September 2023.
[24] Financial Statement filed 1 September 2023 at Part I and Part J.
[25] Written Submissions of Respondent Mother filed 12 May 2025, paragraph 3 (a)(v)(b).
There is no recent evidence before the Court which suggests that the parties are incapable of contributing towards the costs of the Independent Children’s Lawyer. Further, there is no evidence that either party has filed an application seeking a waiver of the costs of the Independent Children’s Lawyer with Legal Aid NSW.
As the Full Court pointed out in Lenova & Lenova (Costs):
[A] limited financial capacity to meet an order cannot be determinative; if it were, a party would always be able to plead impecuniosity as a means of avoiding a cost order in circumstances where the pursuit of litigation has continued in the face of a reasonable offer to cease that litigation and the incurring of its attendant costs[26].
[26] Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12] (Bryant CJ, Coleman and Murphy JJ)
Further, and in Cross & Beaumont, the Full Court said as follows:
We do not suggest that the apparent inability of a party to pay costs is a bar to an order being made, since there are cases where the conduct of an impecunious party will warrant costs being ordered without regard to the difficulties likely to be associated with enforcement.[27]
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
[27] Cross & Beaumont [2008] FamCAFC 68 at [60].
As discussed in my primary judgment, it became clear to me during the final hearing that the father failed to adequately prepare his case and consider what orders would be most appropriate for the children, in accordance with the observations and recommendations of the Court Child Expert.[28] Indeed, it was only after the commencement of cross-examination of the father, that the father’s counsel sought an opportunity to speak with the father to obtain instructions regarding proposed orders in the alternative to those orders identified by the father’s Amended Initiating Application.[29]
[28] Written Submissions of the Respondent Mother filed 12 May 2025, paragraph 5(a) and (b).
[29] Written Submissions of the Respondent Mother filed 12 May 2025, paragraph 5(a); Malcolm v Periera [2025] FedCFamC1F 256 at [29]
I agree with the submissions of the Independent Children’s Lawyer and counsel for the mother that considerable time was spent on Day One and Day Two of the final hearing “teasing out” the father’s case and seeking clarification of the orders he sought. As I said in my primary judgment, the father by his affidavit filed on 8 February 2025 gave no evidence about:
(a)Whether the father had made enquires of a “suitably qualified therapist” as to his/her preparedness to assist the father and the children and if so, the identity and qualifications of that person and the costs associated with the provision of his/her services;
(b)Whether the “suitably qualified therapist” proposed by the father had been provided with a copy of the Family Report or given any material, which would enable him/her to understand the dynamics of the family, the serious allegations made by the mother against the father and most importantly, the needs of the children; or
(c)Whether the father had made enquiries of a contact centre about the preparedness of that centre to assist the father and the children.
The other deficiencies in the application prosecuted by the father are detailed at paragraph 150 of my primary judgment. It was these deficiencies, which gave rise to the unsatisfactory events of Days One and Two of the trial as detailed at paragraphs 26 to 32 of my primary judgment. The father ought to have attended to these matters well prior to trial. Accordingly, I agree with the submissions of the Independent Children’s Lawyer and counsel for the mother that the father wasted the resources of the Court as well as the time of the mother’s counsel and the Independent Children’s Lawyer.[30]
[30] Written Submissions of Respondent Mother filed 12 May 2025, paragraph 5(b).
The delays caused by the father at the commencement of the final hearing resulted in an additional listing of 26 February 2025 in circumstances where the matter had otherwise been allocated five days between 3 and 7 February 2025. Further, and prior to closing submissions commencing on day six at 2.00 pm, the father’s counsel sought additional time to seek instructions. Those instructions could have been obtained well prior to that time particularly given that cross-examination of the father concluded on the afternoon of the third day of trial.[31] The delay had financial consequences for the mother because it was necessary to allocate a further day of Court time for the purpose of closing submissions.
[31] Written Submissions of Respondent Mother filed 12 May 2025, paragraph 5(d).
As referred to in my reasons for judgment, the father also made Applications for Disqualification on two separate occasions. Each application was unsuccessful. It is the view of the Independent Children’s Lawyer that these applications obstructed the expeditious determination of the proceedings. I agree.[32]
[32] Hitch & Hitch [2012] FamCAFC 124; (2012) 47 Fam LR 603.
Whether any party has been wholly unsuccessful in the proceedings
The mother submits that the applicant father was wholly unsuccessful in these parenting proceedings.[33]
[33] Written Submissions of Respondent Mother filed 12 May 2025, paragraph 6(c).
Unlike the mother, the Independent Children’s Lawyer submits that it cannot be said that the applicant father was wholly unsuccessful. This is because his application was not dismissed. In Robinson & Higginbotham (1991) FamCA 4, Nygh J stated that being wholly unsuccessful is “a situation in which the proceedings as a whole have been unsuccessful”. As Thackray J said in Hawkins & Roe (2012) 47 FamLR 526 at [161], "even a meritorious case can be 'unsuccessful' when the other case is found to have greater merit". Although I understand the motivation of the father’s case, it must be said that “meritorious” is not an adjective, which I would use to describe the father’s application in light of the father’s lack of preparation and comprehension of the orders sought by him. Further, and for the reasons identified at paragraph 150 of my primary judgment, I considered the father’s application for the children to live in his primary care to be ill considered. I also agree with the submissions of the mother’s counsel that the father was not successful in obtaining any of the final orders sought by his Amended Initiating Application filed on 2 August 2024.
Such other matters as the court considers relevant
The mother has sole care and responsibility for the children. She is not in receipt of any financial support contributed by the father.[34] This is a matter, which weighs on me.
[34] Written Submissions of Respondent Mother filed 12 May 2025; Mother’s Financial Statement filed on 1 September 2023.
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.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 22 May 2025
0
7
1