Moss and Ralph

[2017] FamCA 639

FAMILY COURT OF AUSTRALIA

MOSS & RALPH [2017] FamCA 639

FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the father appeared at final hearing unrepresented and unprepared – Where without the assistance of the Independent Children’s Lawyer the final hearing would likely not have been able to proceed at all – Where the father failed to put financial information before the Court – Order as to costs

Family Law Act 1975 (Cth), s117

APPLICANT: Ms Moss

RESPONDENT: Mr Ralph

FILE NUMBER: NCC 1300 of 2012

DATE DELIVERED: 24 August 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 11-13 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davies

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Fraser
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Grant & Co.

Orders

1. That on or before 24 November 2017 the Respondent father Mr Ralph pay to the Legal Aid Commission of NSW the sum of $5,280 by way of costs of the Independent Children’s Lawyer.

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 Moss & Ralph 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 NEWCASTLE

FILE NUMBER: NCC1300/2012

Ms Moss

Applicant

And

Mr Ralph

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 24 November 2016 final parenting orders were made in respect of two children then aged six and four years.

2. On 20 December 2016 the Independent Children’s Lawyer (“ICL”) filed an Application in a Case supported by an affidavit seeking this order:

   a)That the costs of the Independent Children’s Lawyer in the sum of $6,688.34 be paid by the First Respondent [Mr Ralph] to the Legal Aid Commission of NSW.

3. The matter was listed for 7 February 2017.

4. On that day the ICL handed up an Affidavit of Service of the Application for Costs and Acknowledgment of Service on the father.

5. The father was not present at Court.

6. From the Bar Table the ICL informed the Court that he had personally spoken to the father that morning.  The father indicated that he had “car issues and extreme financial difficulty” and was in his own view unable to pay the contribution.

7. The ICL further informed the Court that Legal Aid had reduced the sum sought by a little over 20 per cent to $5,280.00.

8. An order was made granting leave to the father to file and serve within 28 days written submissions as to his financial circumstances in response to the Application for Costs of the ICL.

9. No submissions were filed within 28 days or at all.

10. Six months has now passed since the order was made.

The Law

1. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) states that (subject to certain sections of the Act irrelevant here) each party to proceedings shall bear his or her own costs.

2. Section 117(2) states in summary that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to certain subsections, some of which are relevant here, make such order as to costs as the Court consider just.

Justifying Circumstances

1. In my view there are circumstances that justify making an order for costs as follows:

   The father attended for Court unrepresented.  He had not filed a trial affidavit nor any updated response.  He had not taken up the leave to issue subpoenae for witnesses to attend.  He had not issued any subpoenae himself.  He came completely unprepared with no copies of his own documents nor those of the mother.[1]

   [1] Reasons for Judgment delivered 24 November 2016, par 6

2. The father has been legally represented in the past.  He came to fully appreciate during the three days of final hearing in November 2016 that he had put himself in a position of disadvantage by failing to prepare to any extent.

3. Relevantly the father was cross-examined by counsel for the ICL,

   This was done to assist the Court by providing some basic information about the father’s circumstances.[2]

   [2] Reasons for Judgment delivered 24 November 2016, par 8

4. I found as follows:

   The hearing before me was unsatisfactory in the sense that the mother’s evidence was not relevantly tested [by the father] and the father did not put proper evidence before the Court.  Without the proper assistance of the ICL and counsel for the ICL the matter would likely not have been able to proceed at all.[3] (emphasis added)

   [3] Reasons for Judgment delivered 24 November 2016, par 13

5. I found that over a three and a half year period in the Federal Circuit Court there was no judicial determination of any issue in dispute.

6. I concluded that protracted litigation with many reports (six) but no judicial testing of evidence had adversely affected both parties.  The mother engaged private legal representation.  The father reacted in a way which revealed frustration and poor judgment.

7. However, the factor that saw the matter brought to conclusion was the active involvement of the ICL.

8. Courts are generally assisted by the work of the ICL and counsel for the ICL.  This is particularly true in this case.

9. Having come to the conclusion that there are circumstances justifying a costs order being made, I turn to the relevant factors in s 117(2A) of the Act.

Financial Circumstances

1. The father is a tradesman.

2. There is no information before me about the current financial circumstances of the father.  He has chosen not to provide any such information.

3. During the trial the father conceded that he had made very little financial contribution to the raising of the children over the previous seven years.

4. The mother and her partner are in paid employment and have met the financial needs of the children.

5. At time of hearing the father asserted straitened financial circumstances with only sufficient money for day to day essentials.  However, he has a capacity to work and has done so in the past.

CONCLUSION

1. I take into account the failure of the father put financial information before the Court.

2. I cannot positively conclude that the father would suffer financial hardship if he bears a proportion of the costs of the ICL.

3. For these reasons I will make an order that the father pay the costs in the proposed reduced amount of $5,280.00 within three months of the date of these orders.

4. Any application for further extension of time to pay can be the subject of discussion between the father and the Legal Aid Commission of NSW.

5. An order is made accordingly.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 August 2017.

Associate: 

Date:  21 August 2017