MORTON & DIMARCO

[2018] FamCA 537

FAMILY COURT OF AUSTRALIA

MORTON & DIMARCO [2018] FamCA 537

FAMILY LAW – COSTS – Independent children’s lawyer.

Family Law Act 1975 (Cth)

APPLICANT: Mr Morton

RESPONDENT: Ms Dimarco

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 257 of 2017

DATE DELIVERED: 5 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 25-27 June 2018

REPRESENTATION

THE APPLICANT: Mr Morton appearing on his own behalf

COUNSEL FOR THE RESPONDENT: Mr de Robillard

SOLICITOR FOR THE RESPONDENT: Alexanders Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Mr Kenny

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Legal Aid NSW

Orders

1. Leave is granted to the Independent Children's Lawyer ("the ICL") to make an oral application for an order that each of the parties pay one half of her costs of $11,493.

2. The application for costs of the ICL 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 Morton & Dimarco 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 SYDNEY

FILE NUMBER: SYC 257 of 2017

Mr Morton

Applicant

And

Ms Dimarco

Respondent

And

Independent Children's Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

The proceedings

1. Mr Morton (“the husband”) and Ms Dimarco (“the wife”) were parties to litigation concerning property settlement and parenting issues.  Their daughter, X, born in 2010 was independently represented in the parenting proceedings by a solicitor and counsel.  The parties reached agreement in relation to all issues and I made final orders by consent on 25 and 26 June 2018.  The Independent Children's Lawyer ("the ICL") now seeks an order that each of the parties pay one-half of her costs of $11,493.

Background

1. The husband and the wife, who are aged 53 and 42 respectively, commenced cohabitation on 1 May 2007 and married in 2008.  The date of separation was a matter in dispute and was not the subject of a finding of fact.  The husband contended that the parties separated on 4 January 2017, while the wife maintained that the relationship broke down in 2013 and the parties continued to live under one roof for a considerable period.

2. In August 2016 the parties sold the former matrimonial home at Suburb B and a sum of money from the proceeds was deposited into a controlled monies account.  I was informed on 27 June 2018 that the balance of this account was approximately $174,000 to $175,000.  The consent orders made on 27 June 2018 provided that the wife receive $71,000 and the husband the balance of the funds in this account.

Consideration

1. The determination of an application for costs is governed by section 117 of the Family Law Act (“the Act”). Section 117(2A) sets out several considerations to which the court must have regard in the determination of a costs application. Section 117(2A) provides as follows:

   (2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)     such other matters as the court considers relevant.

2. As this is an application by the ICL, the court must also consider s 117(4) of the Act:

   (4)    However, in proceedings in which an independent children's lawyer for a child has been appointed, if:

   (a)a party to the proceedings has received legal aid in respect of the proceedings; or

   (b)  the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;

   the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.

3. I will now consider in turn each of these factors.

Section 117(2A)(a) the financial circumstances of each of the parties to the proceedings

1. The husband is employed as a manager.  According to his Financial Statement of 10 July 2017, he earns a gross salary of $2,190 per week and has total fixed expenditure of approximately $1,129.  This figure of $1,129 did not include day-to-day living costs, such as food and petrol expenses.  According to Part N of the husband's Financial Statement, his day-to-day living expenses amounted to a total of $975 per week.  It thus appears that the husband has very little surplus income over expenditure.

2. The husband will receive approximately $103,000 to $104,000 from the controlled monies account pursuant to the consent orders of 27 June 2018.  Otherwise, he owns only an eight year old motor vehicle, personal effects and a superannuation benefit.

3. The wife is employed in administration and, according to her Financial Statement of 23 February 2017, she earns a gross salary of $1,171 per week.  Her fixed weekly expenses total $821 and, according to her Financial Statement, her day-to-day living costs amount to approximately $119.  The latter figure includes only $25 per week on account of food, thus it might reasonably be inferred that the estimate of $119 per week is an understatement.  Accordingly, the wife too has very little surplus income over expenditure.

4. As noted, the wife will receive a sum of $71,000 from the controlled monies account pursuant to the consent orders of 27 June 2018.  I was informed that the wife owes approximately $50,000 to her previous solicitor and that she is reducing this debt at the rate of $300 per month.  The consent orders of 27 June 2018 provided that the funds payable to the wife are to be deposited into the trust account of her present solicitors.  The husband also has a debt to his previous solicitor in the sum of $5,000 and he has already paid approximately $50,000 to that firm.

Section 117(2A)(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party

1. Neither party was in receipt of a grant of legal aid.

Section 117(2A)(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters

1. Each of the parties complained about the conduct of the other in the course of the proceedings but, in my view, no relevant considerations arise in this context.

Section 117(2A)(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. The proceedings were not necessitated by the failure of either party to comply with previous orders of the court.

Section 117(2A)(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. Neither party was wholly unsuccessful in the proceedings.

Section 117(2A)(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. There was no evidence of any offers to settle the proceedings.

Section 117(2A)(g) such other matters as the court considers relevant.

1. In my view, no additional matters are relevant for present purposes.

Section 117(4) Whether an order for the ICL’s costs would cause financial hardship

1. It seems to me that the relatively parlous financial circumstances of each of the parties militate against an order that they contribute in any proportion to the costs of the ICL.  Further, it is clear that both parties would suffer financial hardship if they had to bear a proportion of the ICL’s costs.  Pursuant to the parenting orders which I made by consent, the child X will continue to live with the father but spend substantial and significant time with the mother.  Accordingly, both of the parties will have a responsibility to contribute to her day-to-day financial support on an ongoing basis.  For these reasons, I decline to make the order sought by the ICL.

2. Having so refused the costs application of the ICL, I wish to thank the legal representatives of X for their invaluable assistance in the resolution of the proceedings.  In particular I pay tribute to counsel briefed by the ICL, who generously remained after the settlement of the parenting aspect of the proceedings and assisted the parties to resolve the financial issues.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 5 July 2018.

Associate: 

Date:  5 July 2018