Mikhail and Becket

[2019] FamCA 267

FAMILY COURT OF AUSTRALIA

MIKHAIL & BECKET [2019] FamCA 267

FAMILY LAW – COSTS – Where the court is unable to order costs of the Independent Children’s Lawyer against a party in receipt of Legal Aid.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Mikhail

RESPONDENT: Ms Becket

INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshall Lawyers

FILE NUMBER: PAC 3178 of 2012

DATE DELIVERED: 3 May 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 13 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Peter Jurd Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshall Lawyers

Orders

1. The Independent Children’s Lawyer’s application for costs 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 Mikhail & Becket 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 PARRAMATTA

FILE NUMBER: PAC 3178 of 2012

Mr Mikhail

Applicant

And

Ms Becket

Respondent

REASONS FOR JUDGMENT

Introduction

1. Parenting proceedings between the parties in relation to their 13 year old child were finalised on 13 December 2018 following an undefended hearing.  Orders were made with the consent of the parties in accordance with the mother’s proposal that she have sole parental responsibility for the child, that the child live with her and communicate with the father according to her wishes.  The only matter in dispute was an additional order sought by the mother which I made following a short hearing. 

2. At the conclusion of the final hearing the Independent Children’s Lawyer (“ICL”) made an oral application that the father pay the ICL’s costs of $1000.  There was some doubt at that time about whether the father then held a grant of legal aid which is determinative in this application.

Background

1. The parties have been engaged in litigation as to the parenting arrangements for their only child since the father filed an Application for Final Orders in the Federal Circuit Court in 2012.

2. The proceedings were subsequently transferred to the Family Court of Australia in 2015.  The father then became disengaged in the proceedings which were eventually listed for an undefended hearing in December 2018.

3. Although the father had not complied with any directions for filing material in relation to the final hearing he did appear at that court event in December 2018 with a legal representative.  The legal representative indicated to the court that the father no longer pressed his Initiating Application and subsequently sought leave to withdraw from the proceedings which was granted.  The father then proceeded to represent himself with the assistance of an Interpreter.

4. The parties then reached agreement that orders be made in accordance with the mother’s proposal and as indicated final orders were made in these terms. 

5. The only remaining order sought by the mother with which the father did not agree was that she be permitted to apply for a passport and/or a renewal of a passport for the child and be allowed to travel overseas with the child without the consent of the father.

6. The hearing on this issue only proceeded and submissions were made by the mother’s legal representative, the ICL and the father.  For reasons given at the time I made the orders in the terms sought by the mother.

7. The ICL then made an oral application for the father to pay her costs of the proceedings.

8. A question then arose as to whether the father at that stage had a grant of legal aid in the proceedings.  The father was directed to file an affidavit by 24 January 2019 in relation to the ICL’s costs application including evidence in relation to his grant of legal aid.

9. The father filed an affidavit on 23 January 2019 indicating that he believed he had a current grant of legal aid and attaching a letter in relation to that grant dated 7 December 2017.

10. An administrative representative of the court made further enquiries with the Legal Aid Commission’s Grants Division and it was confirmed that while the father did not have a grant of aid for the final hearing his grant of legal aid had not been terminated and thus he still had an active grant of aid at the time of the hearing.

The law

1. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her own costs.  That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), and the Court may make an order for costs if there are circumstances that it is of the opinion justify it in doing so.

2. However, s117(4) of the Act provides that if a party to the proceedings has received legal aid in respect of the proceedings the court must not make an order against that party in relation to the costs of the Independent Children’s Lawyer.

3. In these proceedings although the father did not specifically have a grant of aid for the final hearing he did have a current grant of legal aid at the time of the final hearing.  In these circumstances I am precluded from making an order against him in relation to the costs of the ICL and accordingly the application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 3 May 2019.

Associate: 

Date:  3 May 2019