Moradi & Rahimi (No 2)
[2023] FedCFamC1F 529
•30 June 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moradi & Rahimi (No 2) [2023] FedCFamC1F 529
File number(s): SYC 9112 of 2020 Judgment of: BERMAN J Date of judgment: 30 June 2023 Catchwords: FAMILY LAW – COSTS – Circumstances justifying order – Where the ICL seeks an order for costs – Where the quantum of costs is not disputed – Where the father is in receipt of a grant of legal aid – Consideration of whether if an order was made, the mother would suffer financial hardship – Consideration of s 117 and s 105 of the Act – No Order. Legislation: Family Law Act 1975 (Cth) ss 105, 117(2A), 117(3), 117(4). Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 27-28 February and 1-2 March 2023 Place: Sydney Counsel for the Applicant: Mr Iuliano Solicitor for the Applicant: Swifte Law Counsel for the Respondent: Ms Golovina Solicitor for the Respondent: RMG Law & Associates Counsel for the Independent Children's Lawyer: Mr Holmes Solicitor for the Independent Children’s Lawyer: Holmes Donnelly & Co Solicitors ORDERS
SYC 9112 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MORADI
Applicant
AND: MS RAHIMI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
30 JUNE 2023
THE COURT ORDERS THAT:
1.The Application of the Independent Children’s Lawyer for costs against Ms Rahimi be dismissed with no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Moradi (“the father”) and Ms Rahimi (“the mother”) are unable to reach agreement in respect of the future parenting arrangements for X born 2012 and Y born 2014 (collectively “the children”).
The parties commenced a relationship in or about 2008/2009 and were married in Country Q in 2010. The parties separated on a final basis on 28 April 2018.
The father commenced the proceedings by Initiating Application filed 17 December 2020.
The father alleged that the children were at risk of significant emotional abuse as a result of mental health issues experienced by the mother and that her partner, Mr C, had sexually abused Y and as such, the children could not be left in his unsupervised care.
The father sought that the children’s care be equally shared however, the mother considered that the relationship between the parties was poor and the orders needed to reflect that the children should live in her primary care but with the father to enjoy significant and substantial time.
The proceedings involved an Independent Children’s Lawyer (“ICL”).
At the commencement of the proceedings, the ICL proposed orders that would provide for the children to live with the mother and spend significant and substantial time with the father.
The ICL relied upon the single expert reports in particular, the report of Ms P dated 8 November 2022.
The trial commenced on 2 March 2023. Judgment was reserved.
The substantive judgment is delivered contemporaneously with this judgment. The final Orders provide for the parties to have equal shared parental responsibility and for the children to live with the mother and spend five nights per fortnight with the father.
At the conclusion of the trial, the ICL’s costs were in the total sum of $16,900 however, noting that the father has a grant of legal aid, the ICL’s application is that the mother pay her half share in the sum of $8,450.
An Order was made on 2 March 2023 that required the mother to prepare a Financial Statement setting out her income, assets and liabilities.
The question to be considered, is whether the mother would suffer financial hardship if ordered to pay one half of the ICL costs.
HOW SHOULD THE ICL’S COSTS APPLICATION BE DETERMINED?
I have regard to the provisions of ss 117(3) and (4) of the Family Law Act 1975 (Cth) (“the Act”). A determination as to whether a costs order should be made is to be determined by the application and the provision of s 117(2A) of the Act.
Accordingly, it is necessary to consider the financial circumstances of the mother to ascertain the extent to which the orders, as sought by the ICL, would create hardship.
The mother initially sought that the proceedings be adjourned on the basis that she was not able to raise funds necessary to instruct solicitor and counsel.
The mother does not have any savings and is not eligible for legal aid.
The mother appealed the refusal of aid and by annexures to her affidavit of 12 February 2023, she sets out her offer of settlement to the father dated 23 January 2023, and copies of financial documents including bank accounts to establish the extent of her impecuniosity.
By reference to the mother’s Financial Statement filed 23 March 2023, she discloses that her average weekly income from her employment as an administration officer is $1,310 which is inclusive of a Family Tax Benefit of $314. Her total expenditure is $1,436 which includes her rent and the average weekly expenses for the children of $746.
The father does not pay any maintenance and it is unlikely that he will do so in the foreseeable future. The total liabilities of the mother are $34,400 as against total property of $21,052 which relates to the mother’s motor vehicle valued at $21,000.
It could not be said that the mother’s Part N expenses are in any way excessive and even on the most generous view, the mother would only be able to satisfy the amount sought by the ICL by either the sale of her motor vehicle, which would adversely impact upon her ability to maintain her employment and therefore provide financially for the children, or that it would be paid in instalments that would only further exacerbate the mother’s precarious financial position.
I accept that the broad principle is that the costs sought by the ICL should usually be considered favourably, however if orders sought would place the mother in significant financial hardship then pursuant to s 117(4) of the Act, the order should not be made.
I also consider that s 105 of the Act enables the Court to exercise its discretion not to enforce an order or decree made.
The father is in receipt of legal aid and accordingly no order is sought against him. I exercise my discretion and find that to require the mother to pay her share of the ICL’s costs as sought would cause significant hardship and have the potential to adversely affect the interests of the children.
I make orders as appear at the commencement of these reasons.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 30 June 2023
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