Mikono and Perez (Costs)
[2012] FamCA 762
•31 August 2012
FAMILY COURT OF AUSTRALIA
| MIKONO & PEREZ (COSTS) | [2012] FamCA 762 |
| FAMILY LAW – COSTS – application by Independent Children’s Lawyer (“ICL”) for costs of the trial – whether an order should be made that the parties contribute to the costs of the ICL – where the submissions filed on behalf of the ICL failed to address any of the factors set out in s 117, Family Law Act 1975 (Cth) – where ICL’s application for costs dismissed. |
| Family Law Act 1975 (Cth) Supplementary Explanatory Memorandum, Family Law Amendment Bill 2003 (Cth) |
| Horn & Gabin (No. 3) [2011] FamCA 817 Penfold v Penfold (1980) 144 CLR 311 |
| APPLICANT: | Mr Mikono |
| RESPONDENT: | Ms Perez |
| FILE NUMBER: | SYC | 2973 | of | 2010 |
| DATE DELIVERED: | 31 August 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Chambers |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | By way of written submissions received on 15 March, 27 March, 30 March and 3 April 2012. |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | McDonell Milne Toltz Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Coleman & Greig Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stephen W Bell & Associates |
Orders
The Application for costs by the Independent Children’s Lawyer is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mikono & Perez (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: SYC 2973 of 2010
| Mr Mikono |
Applicant
And
| Ms Perez |
Respondent
REASONS FOR JUDGMENT
COSTS
At the conclusion of argument in respect of this trial, but before reasons were delivered or orders made, the Independent Children's Lawyer (“ICL”) made application for the payment of his costs.
Rule 19.08(2) of the Family Law Rules 2004 provides, relevantly, that an application for costs may be made “at any stage during a case”. I permitted an oral application to be made on behalf of the ICL and directed that written submissions be received. Written submissions were filed by the ICL on
15 March 2012 and subsequently by the mother on 27 March 2012; the father on 30 March 2012; and, in reply from the ICL, on 3 April 2012.
Reasons and orders in respect of that application have been delayed until such time as orders and reasons in the substantive proceedings are made and delivered, which is being done contemporaneously with these orders and reasons.
The ICL’s submissions are, if I may say so, a rather unusual document. It provides an outline of the grants of legal aid provided to the ICL and makes reference to factors affecting quantum (for example, the necessity to provide copies of additional material to Dr T).
The submission also refers the decision of the Full Court in In the Marriage of Telfer (1996) FLC 92-688 in support of a submission that “…it is relevant for the court to take account of the fact that the funds of legal aid bodies are finite, and that these funds ought not be exhausted where there are other means available for providing funds for the representation of children…”. What might be regarded as “submissions” in respect of the merits of the application for costs are confined to two paragraphs, including:
I submit, a party to proceedings in which a child is separately represented, and who has the financial capacity to pay, will be ordered to pay or contribute to the costs of the [ICL].
In this case [ICL] costs are a small part of total costs.
There then follows annexures being “[e]xtracts from Practice Directions and Guidelines”.
I accept the submission made on behalf of the mother that:
The gravamen of the ICL’s submissions in support of their costs application – which it is submitted only commence on page 17 under the heading “submissions” – does not reveal a careful dissection of the matters to be considered in s. 117(2A)(a) – (g) but rather a defensive position taken by the ICL against criticism by counsel for the mother who contends that neither parents’ conduct of the proceedings generally or the marginal involvement by the ICL during the hearing, revealed any of the factors, or any factor at all, that would comprise “circumstances” sufficient to enliven the Court to make any costs Order, or as sought by the ICL, that either party should contribute [to] the ICL’s costs.
(Bold and italics in original)
Those same written submissions on behalf of the mother make reference to s 117(5) of the Family Law Act 1975 (Cth) (“the Act”) which provides that:
In considering what order (if any) should be made under ss (2) in proceedings in which an Independent Children's Lawyer has been appointed, the court must disregard the fact that an 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.
It should be observed that this subsection was inserted into the Act by an Amending Act in 2003 (Family Law Amendment Act 2003 (Cth)) – that is to say, an Amending Act passed some seven years after the decision of the Full Court in Telfer.
The Supplementary Explanatory Memorandum in respect to the Family Law Amendment Bill 2003 (Cth) states that s 117(5) “…clarifies that a court may make an order about the costs of a child representative in respect of proceedings in which a child representative has been appointed” and “[i]n making such an order (if any), the court shall have regard to the matters currently listed in subsection 117(2A) of the Family Law Act.” As has already been noted, the submissions filed on behalf of the ICL do not address any of the matters listed in s 117(2A).
Further, Section 117(4) makes specific provision in relation to the costs of an ICL but that section is not at all referred to in the submissions by the ICL (see also Horn & Gabin (No. 3) [2011] FamCA 817, in particular at [33] and [34]).
I do not propose to descend into the detail of that which is submitted on behalf of the mother relating to the conduct of the ICL during the course of the trial. (See, in that respect, Penfold v Penfold (1980) 144 CLR 311 at 315-316.) To the extent that those submissions might be seen to be a criticism of the conduct of the ICL or his counsel, I pass no comment. Insofar as the submissions there made relate to the conduct of the ICL within the context of the proceedings more generally I accept those matters are relevant in a broad sense to the exercise of any discretion with respect to the issue of costs (s 117(2A)(c)).
The written submissions on behalf of the father take a different tack:
The Applicant Father makes no criticism of the [ICL] but submits that no case has been made out to justify an Order that either [party] should pay or contribute to the ICL’s costs, save that it is conceded that an agreement was made that the Applicant Father would pay 75% of Dr [T’s] fees and the Respondent Mother would pay 25% thereof.
In broad summary, the thrust of the submissions made on behalf of each of the mother and the father is that the submissions of the ICL do not address matters which might inform any discretion whereby the general rule contained in s 117(1) of the Act ought be altered by reference to the circumstances of the case.
The submissions made by each of the mother and the father in that respect are, in my view, well founded. I accept them.
The application of the ICL for costs is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 31 August 2012.
Associate:
Date: 31 August 2012.
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