Malena & Talat (No 2)
[2024] FedCFamC1F 46
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Malena & Talat (No 2) [2024] FedCFamC1F 46
File number(s): SYC 3242 of 2019 Judgment of: BERMAN J Date of judgment: 8 February 2024 Catchwords: FAMILY LAW – COSTS – Where the ICL makes an oral application for costs at the conclusion of trial – Where the trial was undefended – where there is no material before the Court in respect of the parties’ financial circumstances – Circumstances justifying an order – No order. Legislation: Family Law Act 1975 (Cth) ss 117 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 22 January 2024 Place: Adelaide via MS Teams Counsel for the Applicant: Mr Teoh Solicitor for the Applicant: Cruz & Partners Lawyers For the Respondent: The respondent did not appear Counsel for the Independent Children's Lawyer: Ms Court Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
SYC 3242 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MALENA
Applicant
AND: MS TALAT
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
8 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application of the Independent Children’s Lawyer for costs against each of the parties be dismissed with no order as to costs.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION
Mr Malena (“the father”) and Ms Talat (“the mother”) are unable to reach agreement in respect of the future parenting arrangements for X born 2013 and Y born 2014 (collectively “the children”).
The children currently live with the father and notwithstanding orders made 7 July 2023, which amended earlier orders of 1 August 2023, the mother spends no regular time with the children although it appears as if from time to time the parties have been able to reach agreement that the mother would spend time with the children under professional supervision.
By Amended Initiating Application filed 15 September 2023, the father seeks orders that he have sole parental responsibility and that the children live with him and spend supervised time with the mother.
The Independent Children’s Lawyer (“ICL”) was broadly in support of the orders sought by the father. The mother disengaged from the proceedings and did not file any trial material in accordance with trial directions. Accordingly, the matter proceeded to an undefended hearing on 22 January 2024 and final orders were made in terms of the father’s proposed Minute of Order.
At the conclusion of the proceedings the ICL made an oral application for costs, seeking that the parties share equally in the total sum of $4,488.
I have regard to the provisions of ss 117(3) and (4) of the Family Law Act 1975 (Cth) (“the Act”). A determination as to whether a costs order should be made is to be determined by the application and the provision of s 117(2A) of the Act.
Accordingly, it is necessary to consider the financial circumstances of each of the parties and the extent to which if orders were made as sought by the ICL, it would likely create hardship.
The mother did not comply with trial direction orders and did not place any material on the Court file that would enable a consideration of her financial situation.
Having said that, the history of the matter would suggest that the mother has casual employment as a tradesperson. The father is employed on a full-time basis in the service industry.
The allegations made by each of the parties in earlier material would suggest that their respective financial position is poor. Whilst it is likely that the father is significantly more settled than the mother, it is clear that he has the full-time care of the children without any financial contribution by the mother.
The final orders provide that any time the children are to spend with the mother is the subject of professional supervision. The orders require that each of party contribute one half of any costs of supervision.
I accept that the broad principle is that the costs sought by the ICL should usually be considered favourably, however if orders sought would place the parties in significant financial hardship, then pursuant to s 117(4) of the Act, the order should not be made.
I consider it appropriate to exercise my discretion and find that neither party should be required to share in the ICL costs as sought and that to do so would cause significant hardship in particular to the mother but also to the father and possibly result in their inability to properly provide for the costs of the children’s supervised time with the mother.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 8 February 2024
0
0
1