Nardini & Legal Aid NSW
[2019] FamCA 340
•28 May 2019
FAMILY COURT OF AUSTRALIA
| NARDINI & LEGAL AID NSW | [2019] FamCA 340 |
| FAMILY LAW – COSTS – Costs of the Independent Children's Lawyer – Where the Independent Children's Lawyer has sought that the mother pay half of their costs of the proceedings – Where the mother asserts that she will suffer financial hardship if she is required to pay half the costs of the Independent Children's Lawyer – Where the mother has not provided evidence to support that assertion – Court orders that the mother pay half the costs of the Independent Children's Lawyer upon the finalisation of property proceedings between herself and the father. |
| Family Law Act 1975 (Cth) s. 117 Family Law Rules 2004 (Cth) r. 19.18(1)(a) |
| CDJ v VAJ (No 2) (1998) 197 CLR 172 De Roma & De Roma [2013] FamCA 566 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Gahen & Gahen (No 2) [2013] FamCA 936 Stoian & Flemming (Costs) [2014] FamCA 944 |
| APPLICANT: | Ms Nardini |
| RESPONDENT: | Legal Aid NSW |
| FILE NUMBER: | SYC | 6095 | of | 2016 |
| DATE DELIVERED: | 28 May 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 20 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Shea |
| SOLICITOR FOR THE APPLICANT: | Legal Aid NSW |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
Orders
That within 60 days of the making of final orders in property proceedings between the father and the mother, the mother shall pay Legal Aid NSW the sum of $14,903.70, being her share of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties.
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 Nardini & Legal Aid NSW 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 6095 of 2016
| Ms Nardini |
Applicant
And
| Legal Aid NSW |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application brought by the Independent Children’s Lawyer (“ICL”) for the mother to pay half the costs of the ICL associated with the parenting proceedings between the parties, Ms Nardini (“the mother”) and Mr Nardini (“the father”). The father has already paid the other half of the ICL’s costs.
In those proceedings, the parties sought competing orders concerning their children, B, born in 2008 and C, born in 2012 , collectively referred to herein as “the children”. Those proceedings were heard over a period of 10 days, being 9 to 13 April 2018, 29 May to 1 June 2018 and 21 August 2018.
Final judgement was delivered on 31 January 2019. By way of summary, that judgment found that, as result of the parties’ inability to communicate effectively, orders should be made for the father to have sole parental responsibility for the children. The Court also found that, pending the mother addressing her mental health concerns, the children would face an unacceptable risk of harm in spending unsupervised time with her. The orders also provided a framework for the mother to demonstrate insight into her mental health and parenting capacity and upon doing so, a transition to the children’ spending unsupervised time with her, upon the agreement of the parties.
Orders sought
The orders sought by the ICL are, as follows:
That within 60 days of the making of final orders in property proceedings between the Husband and Wife, the Wife Shall Pay the Legal Aid NSW the sum of $14,903.70 being her share of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties
Legal principles
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to certain qualifications, each party to the proceedings shall bear his or her own costs. However, that does not apply to the ICL, because the ICL is not a party to the proceedings.
In that regard, ss 117(3) and (4) set out the following:
(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(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.
In this matter, it is acknowledged that the mother is not legally aided. As will be discussed, the real question to be determined in this judgment is whether the mother would suffer financial hardship if the costs order sought by the ICL was made against her.
Having noted that the presumption set out in s 117(1) does not apply, it is necessary to consider whether a costs order is justified, having regard to s 117(2) of the Act, which provides:
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
The matters relevant to determining what order, if any, should be made for costs are set out in s 117(2A) of the Act, 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.
It is incumbent upon the Court, in the exercise of its discretion, to consider and apply those provisions set out in s 117(2A). However, there is nothing to prevent any factor being the sole foundation for any order for costs being made: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at 130.
Consideration
I have considered each of those paragraphs and have determined that the factors most relevant to my decision are those set out at paragraphs (a), (c), (e) and (g).
Financial circumstances
In terms of s 117(2A)(a), I note that a consideration of the mother’s financial circumstances, pursuant to s 117(2A)(a), necessarily overlaps with the concept of financial hardship as referred to in s 117(4), which I have set out. The mother substantially relies on that factor as the basis upon which she should not be required to pay half of the ICL’s costs.
In support of her argument, the mother relies upon her Financial Statement filed on 15 May 2019, which sets out the following:
a)Her property is valued at $1,642,900, together with superannuation of $124,362;
b)Her liabilities are quantified at $817,516;
c)Her income is $1,664 per week; and
d)Her total expenses are $2,429 per week.
In that regard, I respectfully agree with the submission of Counsel for the ICL, that, prima facie, the mother appears to have sufficient capital to raise the amount of $14,903.70 sought by the ICL.
The mother contends, however, that as a result of the property proceedings that are currently on foot between herself and the father, she does not have access to that capital. I note that, since I delivered judgement on 31 January 2019, the mother has been on notice of a potential claim for costs by the ICL against her. In that respect, I refer specifically to paragraph 359 of my decision. Put shortly, if it is the case that the mother has or contemplates entering into an arrangement for the resolution of her property claim against the father that results in a situation where she does not have access to sufficient funds to meet the costs of the ICL, she does so at her own peril.
Further, I note that the shortfall between the mother’s stated income and expenditure is $765 per week. In that respect, I, again, respectfully agree with the contentions of Counsel for the ICL that a number of items set out in Part N of the mother’s Financial Statement, which sets out the nature of certain of her weekly expenditure, are excessive. I note that the mother claimed expenditure of $100 per week in respect to house repairs, without any particulars being provided as to the nature of the required repairs. The mother also identifies the sum of $100 per week as being spent on entertainment/hobbies and $100 per week as being spent on holidays. The mother further identifies $100 per week spent on chemist/pharmaceutical, $120 per week spent on cleaning (house/pool), $50 per week spent on dry cleaning, $50 per week spent on books and magazines $50 per week spent on gifts, $100 per week spent on hairdressing/toiletries and $200 per week spent on “other necessary commitments”. The total of those items of estimated expenditure is $970.
While I accept that the mother may incur expenses in respect to each of those categories, I respectfully agree with Counsel for the ICL that the amounts claimed by the mother in respect of those items appear to be excessive. In the absence of evidence setting out how those items of expenditure have been estimated, the mother has not satisfied me that she would face financial hardship as a result of the Court making the orders sought by the ICL. In that respect, it is not unreasonable to expect the mother to tighten her expenditure until such time as she pays the amount sought by the ICL. This is particularly so in circumstances where, as I will explain, I am satisfied that the manner in which the mother conducted her case significantly lengthened the hearing and, hence, increased the costs incurred by the ICL.
Conduct of the mother
In terms of s 117(2A)(c), in my decision dated 31 January 2019, at paragraphs 83 to 89, I noted that the mother fundamentally changed her position in respect to the parenting proceedings literally at the time of final submissions.
In that respect, the mother originally claimed that the children were at risk of physical and psychological harm in the care of the father and hence sought orders for the children to live with her and spend only supervised time with the father. In final submissions, however, the mother acknowledged that it was appropriate for the children to live with the father, pending her undergoing a period of therapeutic intervention to address and monitor her mental health concerns. As noted in my judgment dated 31 January 2019, that change of position occurred at an entirely inappropriate stage of the proceedings.
Had the mother adopted her ultimate, more reasonable position earlier in the proceedings, the hearing would have been substantially shorter and, hence, less costly to the parties and the ICL.
Wholly unsuccessful
In terms of s 117(2A)(e), the mother was wholly unsuccessful in respect to the primary aspect of her claim, which was originally framed in her Initiating Application filed on 21 September 2016, expressed broadly, as being that the children live with her and spend only supervised time with the father.
Other relevant matters
In terms of s 117(2A)(g), it is relevant that the role played by the ICL in parenting proceedings, including in this matter, is invaluable. The role of the ICL was summarised in the context of an application for costs in proceedings before the High Court of Australia in CDJ v VAJ (No 2) (1998) 197 CLR 172. Specifically, at [11], Kirby J said:
The children's representative has a duty to “act in an independent and unfettered way in the best interests of the child”. This duty carries over to an appeal. The interests of the children and their welfare is of concern to the public. Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this court. [References omitted].
I accept that it is in the public interest for the best interests of children to be represented in proceedings before this Court and that the Court invariably receives substantial assistance, in that regard, from ICLs appointed in parenting proceedings. Such assistance was undoubtedly provided by the ICL in this case.
Also relevant to these proceedings is s 117(5) of the Act, which provides:
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the 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.
Accordingly, it is my view that the ICL should be presumed to be unfunded and, having regard to authority, in those circumstances, the Court is generally inclined to order litigants to contribute to the ICL’s costs: Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma [2013] FamCA 566.
Further, I note that the ICL has sought an order for costs to be paid by the mother in a lump sum amount. Those costs have been itemised in a schedule provided by the ICL to the Court and the mother at the hearing on 20 May 2019.
Pursuant to rule 19.18(1)(a) of the Family Law Rules 2004 (Cth), the Court may make an order for costs of a specific amount. Having regard to the principles adumbrated by Kent J in Stoian & Flemming (Costs) [2014] FamCA 944 at [91], I am satisfied that the costs figure sought by the ICL is logical, fair and reasonable. I will, therefore, make an order for costs in favour of the ICL in the sum of $14,903.70, being 50 per cent of the total costs incurred by the ICL in this matter.
The orders sought by the ICL, which are to the effect that the precondition to the mother being required to pay costs is the resolution of the property proceedings that she is currently engaged in with the father, is entirely reasonable and consistent with the ICL’s obligations as a model litigant. To further assist the mother, the ICL has agreed to the period within which the mother is required to pay their costs being extended from the period originally stipulated of 30 days, to 60 days. That, again, in my view, it is also entirely fair and reasonable.
Accordingly, for these reasons I make orders in accordance with those sought by the ICL.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 28 May 2019.
Associate:
Date: 28 May 2019
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