Maruff and Maruff
[2008] FMCAfam 1478
•7 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARUFF & MARUFF | [2008] FMCAfam 1478 |
| COSTS – Application for costs of Independent Children's Lawyer – no basis for application – application required to be made as condition of appointment of Independent Children's Lawyer by Legal Aid Commission – abuse of process. |
| Family Law Act 1975, s.117(2A) |
| Applicant: | MS MARUFF |
| Respondent: | MR MARUFF |
| File Number: | PAC 5692 of 2007 |
| Judgment of: | Halligan FM |
| Hearing date: | 7 November 2008 |
| Date of Last Submission: | 7 November 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 7 November 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Orr |
| Solicitors for the Respondent: | Father In Person |
| Independent Children’s Lawyer : | Ms Haga |
ORDERS
By consent, orders are made in accordance with the terms of settlement, marked exhibit A.
By consent, otherwise all outstanding applications are dismissed, other than the contravention application.
The independent children's lawyer's application for costs against the father is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Maruff & Maruff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5692 of 2007
| MS MARUFF |
Applicant
And
| MR MARUFF |
Respondent
REASONS FOR JUDGMENT
This matter involves both parenting proceedings between the parties, who are the parents of two children, and contravention proceedings brought by the father against the mother. There is an independent children's lawyer in the parenting proceedings.
The parenting proceedings have settled and I have been provided with terms of settlement which will finally resolve the parenting aspect of the matter, leaving the contravention application. At that point the independent children's lawyer has sought a costs order against the father. A costs order is not sought against the mother because she is in receipt of Legal Aid.
The assessment that has been handed up indicates costs of the independent children's lawyer of $3420.50, and I am asked to make an order that the father pay one half of that amount.
What has been put by the independent children's lawyer is that the father has been substantially successful in this matter. The mother instituted the parenting proceedings seeking to vary parenting orders that were made only last year. Ultimately, the settlement reached is broadly consistent with those orders albeit that the period of time over which the father's time with the children moves to the full extent provided for is somewhat further extended.
Otherwise it is put that nothing is known about the father’s financial circumstances. When I put it to the independent children's lawyer, she conceded that based upon what she had put to the Court, there was no basis or foundation for the Court to seriously consider making a costs order. She indicated that she was bound by a condition under which she was appointed and funded by the Legal Aid Commission, that condition, imposed by the Commission, being to make an application for costs, I infer unless the party is legally aided.
I have previously said that I consider applications in circumstances such as this to be an abuse of process. They are oppressive of the party against whom the application is made. I am concerned that a government body would adopt such an absolute rule requiring legal practitioners to make applications to the Court they may know have no merit or foundation.
The father, to his great credit in my view, has indicated that he found the involvement and participation of the independent children's lawyer in this matter of great assistance in reaching the ultimate resolution. And I think it would be fair to say that he indicated that if there was any basis upon which a costs order could be made he would not oppose it being made, although he may seek time in which to make a payment. However, he also indicated that if the Court was satisfied - and I am paraphrasing what he said here - that there was no basis or foundation upon which such an order could be made, he would oppose it.
It is clearly the case that there is no foundation for a costs order to be made against the father, bearing in mind the relevant matters that are to be taken into account in considering such an application as set out in section 117(2A). In those circumstances, the application should be dismissed and that will be the order. I will make orders disposing of the parenting matter and then turn to the directions necessary for the further prosecution of the contravention application.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 19 February 2009
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