Nast and Nast (No 2)

[2010] FamCA 322

FAMILY COURT OF AUSTRALIA

NAST & NAST (NO. 2) [2010] FamCA 322

FAMILY LAW – COSTS – Independent Children’s Lawyer – Relevant Considerations

Family Law Act 1975 (Cth) ss 117AB(a), 117AB(b)

APPLICANT: Ms Nast

RESPONDENT: Mr Nast

INDEPENDENT CHILDREN’S LAWYER: Tiyce & Partners, Lawyers

FILE NUMBER: SYF 2617 of 2005

DATE DELIVERED: 21 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 21 April 2010

REPRESENTATION

FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: O’Brien, Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: M Auld

Orders

1. That the oral application for costs made by the independent children’s lawyer is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Nast & Nast is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2617 of 2005

MS NAST

Applicant

And

MR NAST

Respondent

REASONS FOR JUDGMENT

Introduction

1. An oral application is made by the independent children’s lawyer for an order for costs against the parties.  The independent children’s lawyer seeks an order for payment of $11,487.60. 

2. In relation to the father, reliance is placed upon section 117AB of the Act which requires that an order for costs be made, in the event that sub-sections (a) and (b) have been satisfied.

3. For obvious reasons, sub-section (a) is not a matter of controversy.  As to sub-section (b), counsel did not draw my attention to findings that were made demonstrating “a false allegation or statement in the proceedings.[1]”  Counsel was invited to draw my attention to those matters but did not make any further submission.  Presumably, that approach was taken on his instructions.

   [1] Section 117AB(b)

4. I would have been minded to make an order for costs as sought inferentially against the father had I been satisfied that both sub-sections (a) and (b) have been made out. 

5. I cannot be so satisfied when no submission is made drawing my attention to the basis upon which sub-section (b) is in fact engaged and that I would, therefore, be appropriately satisfied.

6. A further consideration is that it is a fundamental principle, so far as orders in civil proceedings are concerned, that an order should not be made generally speaking, unless it is capable of being enforced.

7. There is scant evidence of the father’s financial circumstances.  The judgment makes a finding that in relation to payment of child support and meeting a variety of expenses from time to time, albeit irregularly, so far as the children are concerned the father has been heavily, if not exclusively, reliant upon the paternal grandparents to provide him with the funds for that purpose.

8. Otherwise, the evidence was that he lives with the paternal grandparents and is unemployed. 

9. I have no evidence of any significant financial resources at his disposal and indeed no submission was made to me drawing my attention to those matters.

10. No submissions were made in relation to a possible order for costs being made against the mother.

Conclusion

1. Consequently, the application by the independent children’s lawyer will be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  28 April 2010