Natt vs Tuan

[2020] FamCA 1025

FAMILY COURT OF AUSTRALIA

Natt & Tuan [2020] FamCA 1025

File number(s):

WOC 451 of 2012

Judgment of:

MCCLELLAND DCJ

Date of judgment:

4 December 2020

Catchwords:

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer has made an Application for the mother to pay their costs in a fixed sum of $6,892.90 – Where the parties’ came to a final agreement in respect of the parenting arrangements for the children prior to the final hearing of the matter – Where the mother contends that she would experience financial hardship if an order was to be made as sought by the Independent Children’s Lawyer – Application dismissed – No order for costs made.

Legislation:

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 1.04

Cases cited:

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123

Number of paragraphs:

20

Date of last submission/s:

3 December 2020

Place:

In Chambers by way of written submissions

ORDERS

WOC 451 of 2012

IN THE MATTER OF NATT & TUAN

BETWEEN:

MR NATT

Applicant

AND:

MS TUAN

Respondent

B PTY LTD

Other

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	4 DECEMBER 2020

THE COURT ORDERS THAT:

1.No order be made as to the costs of the Independent Children’s Lawyer.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Natt & Tuan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. This decision concerns an Application brought by the Independent Children’s Lawyer (“ICL”) for Ms Tuan (“the mother”) to pay the costs of the ICL associated with the parenting proceedings between the parties, Mr Natt (“the father”) and the mother. The ICL has not pressed for orders for the father to pay the costs of the ICL as the father has been in receipt of Legal Aid NSW assistance in the proceedings.

2. The matter was listed for final hearing over four (4) days scheduled to commence on 7 December 2020. The parties were able to enter into an agreement as to final parenting arrangements and, on 3 December 2020, I made Orders in Chambers in accordance with the Minute of Consent Orders proposed by the ICL and the parties.

   ORDERS SOUGHT

3. The ICL seeks orders for the mother to pay the costs of the ICL in the fixed sum of $6,892.90.

4. The mother seeks that this Application be dismissed and no order be made in respect of the ICL’s costs.

   LEGAL PRINCIPLES

5. 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.

6. In that regard, ss 117(3) and (4) of the Act 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.

7. 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.

8. 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.

9. 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.

10. 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].

    CONTENTIONS

11. The ICL relies upon the following written submissions in support of their Application:

    The Independent Children's Lawyer makes this Application for costs as against the Mother as it is her obligation to do so by Legal Aid NSW…

    The Independent Children's Lawyer notes that pursuant to the final orders his Honour has been asked to make the Mother will be the primary carer of the children and have sole parental responsibility for them.

    The Independent Children's Lawyer notes that that Ms C, Chapter 15 Expert appointed has prepared 3 reports in relation to this matter in 2015, 2017 and 2019. The mother has on each occasion paid her one-half share of those reports and the father's share was funded by Legal Aid NSW.

    The Independent Children's Lawyer makes no further submissions in support of the Costs Application.

12. By way of reply, the mother made the following written submissions:

    (a) The matter was first commenced by the Father in 2012 when he filed an Initiating Application which ultimately sought for unsupervised overnight contact with the children.

    (b) The Father has been legally aided throughout the proceedings whilst the mother has had to privately fund her matter. She has incurred significant legal costs in this matter as a result of the Father's Application.

    (c) Due to the cost of this matter and to continue to be able to afford representation, the mother and the children had to move in with the mother's parents.

    (d) The father pays minimal child support to the mother of $25 per week which commenced in May 2020, and prior to this it was $4.00 per week. The mother has and continues to have the sole financial burden of raising both children.

    (e) The mother is employed on a casual basis in customer service and earns approximately $600 gross per week. She has no leave entitlements, and her employment can be cancelled at any stage.

    (f) The Court is being asked to make orders that provide for the Mother to have primary care and for time with the father to be at the children's discretion. The agreement is no reflection or even close to that what was initially sought by the father in proceedings in 2012.

    (g) The proceedings have had a very significant impact on the children and the mother not only emotionally but also financially. The financial burden of paying the ICL legal costs will add an additional financial stress to the mother.

    CONSIDERATION

13. I have considered each of those paragraphs in s 117(2A) of the Act and have determined that the factors most relevant to my decision are those set out at paragraphs (a) and (c).

    Financial circumstances

14. In terms of s 117(2A)(a) of the Act, 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.

15. I am satisfied that the mother has incurred not insubstantial costs in respect to these proceedings, including meeting a half share of the single expert fees.

16. As a result of those costs, which have been incurred, it has been necessary for the mother and the children to move in with the mother’s parents.

17. The mother receives a modest income and has the ongoing responsibility for the primary care of the parties’ children in circumstances where she receives minimum child support from the father.

18. I am satisfied that the mother would experience financial hardship if an order was made for her to pay the costs of the ICL.

    Conduct of the mother

19. Section 117(2A)(c) of the Act requires me to consider the conduct of the parties to the proceedings in relation to the proceedings. The mother has approached this litigation with a responsible and balanced attitude having regard to the obligations of the parties as reflected in r 1.04 of the Family Law Rules 2004 (Cth). This is reflected in the fact that the parties have been able to resolve this matter without the matter proceeding to hearing. This has saved time and resources that otherwise would have been incurred by the Court, the parties and the ICL.

    CONCLUSION

20. Accordingly, for these reasons, I dismiss the application of the ICL for the mother to pay the ICL’s costs in the fixed sum of $6,892.90 and otherwise make no order as to costs. This means that each party, including the ICL, will be responsible for their own costs but not for the costs of any other party.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       4 December 2020