Mohr and Sanders (No. 2)

[2017] FamCA 899

FAMILY COURT OF AUSTRALIA

MOHR & SANDERS (NO. 2) [2017] FamCA 899

FAMILY LAW – COSTS – Independent Children's Lawyer’s application for costs dismissed

Family Law Act 1975 (Cth)

APPLICANT : Ms Mohr

RESPONDENT: Mr Sanders

INDEPENDENT CHILDREN’S LAWYER: Mr Bell

FILE NUMBER: SYC 6099 of 2007

DATE DELIVERED: 8 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 8 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mother in person

SOLICITOR FOR THE RESPONDENT: Father in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stephen W Bell & Associates

Orders

1. The Independent Children's Lawyer’s application for costs against both the parties 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 Mohr & Sanders (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

FILE NUMBER: SYC 6099  of 2007

Ms Mohr

Applicant

And

Mr Sanders

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Independent Children's Lawyer made an application that both parties pay one half of his costs in respect of proceedings and the hearing before me that concluded in March 2017. The total amount of costs and disbursements claimed were about $10,000.

2. Both parents filed affidavits that substantially went to their individual financial circumstances, although the father did in his affidavit make unflattering assertions about the performance of the Independent Children's Lawyer in the vaguest terms. The Independent Children's Lawyer disputed that his performance was inadequate and there is no admissible evidence that it was.

3. At the commencement of the hearing before me today, the Independent Children's Lawyer announced that he wished to withdraw his costs application against the father and proceed with his costs application against the mother. I queried why that was so given that on the face of the father’s own material, he seemed to be in a significantly stronger financial position when compared with the mother. The father annexed to his affidavit a decision of the Administrative Appeals Tribunal dated 15 June 2016. At [31], Member Ryan records a finding that the father had adjustable taxable income in the approximate sum of $140,000 per annum. The Independent Children's Lawyer also thought there was significant equity of about $200,000 (at least) in real estate the father owned. In addition, there is the issue raised by the mother as to what annexure D to the father’s affidavit meant in relation to cash funds that might be available to the father.

4. The mother’s financial position in comparison was significantly weaker. Her average gross salary has been about $80,000, however she says she has applied to work part time for a period of six months due to stress of these proceedings and the general stress associated with her job which she says will reduce her annual gross salary to $68,000 per annum. She has an entitlement to receive $1,222 per month by way of child support but says that that is sometimes unreliable in terms of the timing and its payment. She has a Centrelink debt of about $3,500 which she incurred when she was acting in a more senior position. On the mother’s evidence, her current weekly income is less than her current expenditure. She has expended a substantial amount of money on legal costs in respect of the proceedings and had to borrow $10,000 from her father to do so. The mother has provided me with further documents this morning which simply buttress the information in her affidavit in relation to her financial position. She told me that in relation to her assets, she has a debt of about $368,000 on a property worth about $700,000 - $750,000.

5. In circumstances where both parties have equity in real estate but might be income poor, it is not unusual for the Independent Children's Lawyer to seek to defer the payment of any order for costs and secure those costs by way of caveat against real estate. Both parties have real estate in this case against which such an order could have been made but no such application was made.

6. At the end of the mother’s submissions, the Independent Children's Lawyer sought leave to withdraw his application against the mother.

7. That course was advisable given that I had already indicated to the Independent Children's Lawyer that if for reasons I did not understand, he had formed the view that he should not proceed against the father given the father’s financial circumstances, I did not understand how it could be just to proceed against the mother who, on the face of the material, was in a substantially weaker position than the father.

8. Ultimately the application against each parent is no longer pressed by the Independent Children's Lawyer and accordingly the Independent Children's Lawyer’s application for costs against both the parties is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 8 November2017

Associate: 

Date:  8.11.2017