Meeks and Royce (No. 2)

[2017] FamCA 1010

FAMILY COURT OF AUSTRALIA

MEEKS & ROYCE (NO. 2) [2017] FamCA 1010

FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer applied for the father to contribute to her costs of the five day trial - Where the mother is in receipt of a grant of Legal Aid – Where the father is not in paid employment – Where the father would suffer hardship if required to contribute to the costs of the Independent Children’s Lawyer – Where Child Support payable for the child in future would be adversely affected by an ongoing commitment to repay debt to the Legal Aid Commission – Ordered that the application for costs is dismissed

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Meeks

RESPONDENT:	Mr Royce
INDEPENDENT CHILDREN’S LAWYER:	Barbara Garrick & Associates

FILE NUMBER: NCC 1891 of 2013

DATE DELIVERED: 7 December 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 28 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Boyd
SOLICITOR FOR THE APPLICANT:	Kernick Law

COUNSEL FOR THE RESPONDENT: Mr Davies

SOLICITOR FOR THE RESPONDENT:	Brazel Moore Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Bates
SOLICTOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Barbara Garrick & Associates

Orders

1. The oral application by the Independent Children’s Lawyer for costs, made 28 April 2017, is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Royce & Meeks (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC1891/2013

Ms Meeks

Applicant

And

Mr Royce

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Independent Children’s Lawyer (“ICL”) for the father, Mr Royce, to contribute to her costs of the five day trial before me in November 2016.

Brief History of Relevant Events

1. The ICL represented the interests of one child B, now aged almost 10 years.  Counsel was briefed.

2. There is no claim against the mother who was in receipt of a grant of Legal Aid.

3. The application was made orally when final orders were made and reasons delivered on 28 April 2017.

4. In the circumstances of a change of residence being ordered, leave was granted to the father to provide within 28 days any material relevant to his financial circumstances.

5. The father took up that leave and filed a Financial Statement on 31 May 2017.

6. On 25 May 2017 the father had lodged an appeal.

7. All documents then moved to the Appeals Registry.

8. On 5 June 2017 an application for a stay was filed and opposed.

9. On 30 June 2017 the stay application was dismissed with no order as to costs.

10. On 18 July 2017 the father filed a Notice of Discontinuance of his appeal.

11. Now all that remains is the determination of the application by the ICL for costs.

The Law

1. The principle established in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is that each party to proceedings under the Act shall bear his or her costs.

2. If the Court is of the opinion that there are justifying circumstances the Court may, subject to certain subsections, make such order as to costs and security for costs as the Court considers just.

3. There are circumstances justifying the consideration of a costs order, particularly the necessity for an application by the mother to be able to spend time with the child at all, despite 2013 orders providing for that to happen.

4. Accordingly, the factors set out in the Act must be considered.

(a)     S 117(2a) Financial Circumstances

1. The father discloses a total average weekly income of $701.

2. The father has not been in paid employment since September 2010 when he was seriously injured in a car accident.

3. He lived with his parents but is probably now living with his partner Ms M and the nine month old baby born of that relationship this year.

4. Rent of $270 per week is disclosed.[1]

   [1] Financial Statement of the father filed 31/05/2017, Part G

5. It is apparent that the father has very little disposable income for the reasonably modest average weekly expenses revealed in his statement.

6. There is a “NIL” figure against Maintenance/Child Support.[2]

   [2] Financial Statement of the father filed 31/05/2017, Part D

7. I am unaware of whether there had been a Child Support Assessment application by the mother at that time in late May 2017.

8. In any event, I am satisfied that:

   a)The father would suffer hardship if required to contribute to the costs of the ICL (s 117(4)(b)); and

   b)Child Support payable for the child in future would be adversely affected by an ongoing commitment to repay debt to the Legal Aid Commission.

CONCLUSION

1. The ICL is obliged to make this application.

2. The work of herself and counsel instructed was of genuine assistance to the Court.

3. The application is declined on the basis of the financial circumstances of the father.

4. An order is made accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 7 December 2017.

Associate: 

Date:  7 December 2017