Niem & Tong (No. 2)
[2020] FamCA 1074
•18 December 2020
FAMILY COURT OF AUSTRALIA
Niem & Tong (No. 2) [2020] FamCA 1074
File number(s): PAC 3572 of 2014 Judgment of: FOSTER J Date of judgment: 18 December 2020 Catchwords: FAMILY LAW – COSTS – Where application for costs by the Independent Childrens Lawyer – Where consideration of applicable principles – Where orders made for the parties to pay the Independent Children’s Lawyer’s costs Legislation: Family Law Act 1975 (Cth) ss 117, 117(2), 117(2A), 117(3), 117(4), 117(5)
Family Law Rules 2004 (Cth) r 19.18(1)
Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Niem & Tong [2020] FamCA 1013
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Number of paragraphs: 29 Date of last submission/s: 16 October 2020 Date of hearing: 2 October 2020 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers Respondent – self‑represented litigant: The Respondent did not attend Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 3572 of 2014 BETWEEN: MS NIEM
Applicant
AND: MR TONG
Respondent
MS WEAVER
Independent Children’s Lawyer
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
17 DECEMBER 2020
THE COURT ORDERS THAT:
1.That the father pay his share of the Independent Children’s Lawyer’s costs in the sum of $10,208.
2.That the mother pay her share of the Independent Children’s Lawyer’s costs in the sum of $8,558 noting that the mother has already paid, by way of contribution to the Independent Children’s Lawyer’s costs, the sum of $1,650 in March 2017.
3.That Order 12 made 16 November 2018 be discharged.
4.That the Independent Childrens Lawyer direct that the sum of $3,950 held on behalf the parties by Legal Aid NSW be released to pay partially the mother’s liability in relation to costs as provided in Order 2 above.
5.That the mother pay the balance of her share of the Independent Children’s Lawyer’s costs within three months from the date of orders or at the conclusion of the family law property proceedings and from her share in those proceedings whichever is the earlier,
6.That the father pay his share of the Independent Children’s Lawyer’s costs within three months from the date of these orders.
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 Niem & Tong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
The application for determination is an application by the Independent Children’s Lawyer that the parties to long running parenting proceedings pay costs of the Independent Children’s Lawyer.
Parenting proceedings were finalised by way of final orders made on 8 December 2020 following an undefended hearing. These reasons assume familiarity with the lengthy reasons for judgment delivered on that day: Niem & Tong [2020] FamCA 1013
As can be seen from the previous reasons for judgment the parenting proceedings commenced in August 2014 and had progressed in difficult circumstances mostly occasioned by the conduct or circumstances that related to the father.
Ultimately on 8 December 2020, final orders were made that, in summary, provided for the mother to have sole parental responsibility for the two children of the parties’ relationship then aged 15 and 10 and for the children to live with her. An older child then aged 19 was living with the father.
For reasons that are readily apparent from the reasons for judgment delivered 8 December 2020, the Independent Children’s Lawyer has had a significant engagement not only in the proceedings themselves but a significant engagement with the subject children.
Independent Children’s Lawyer’s Costs.
The Independent Children’s Lawyer seeks an order that the father and mother pay the Independent Children’s Lawyer’s costs in these proceedings.
The law as to costs is well settled. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.
Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.
The relevant considerations in relation to an order for costs are set out in s 117(2A).
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:
(a)The financial circumstances of each of the parties to the proceedings;
(b)Whether any party has legal aid and the terms of any grant of aid;
(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 answers, 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.
Section 117(3) provides:
(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.
Section 117(4) provides:
(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.
Section 117(5) 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.
A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the Independent Children’s Lawyer, because that terminology is susceptible to ambiguity.
As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936, it could conceivably mean either:
(a)The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or
(b)The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.
In De Roma & De Roma [2013] FamCA 566 Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.
The threshold presumption as to each party bearing their own costs has no application to the Independent Children’s lawyer, who is not a party.
The law is well settled, however, that there is power under the section, subject to other statutory provisions referred to below, to make orders for or against the Independent Children’s Lawyer and the Court may make such order as to costs of the Independent Children’s Lawyer and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma (supra)).
The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) which states:
Method of calculation of costs
(1) The court may order that a party is entitled to costs:
(a) of a specific amount;
(b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);
(c) to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162 that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.
Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93-748 at [130]:
If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…
Neither party in these proceedings is in receipt of a grant of legal aid.
There continue to be ongoing property proceedings between the parties and during the course of the proceedings the husband has retained for himself significant funds that would, otherwise, be comprised in the matrimonial asset pool. Neither party will suffer hardship in the event of an order for contribution to the Independent Children’s Lawyer’s costs.
In all the circumstances it is appropriate that there be an order for both parties to contribute to the Independent Children’s Lawyer’s costs. In the context of this matter, the Independent Children’s Lawyer’s costs have been incurred significantly as a consequence of necessary interlocutory hearings more fully referred to reasons for judgment dated 8 December 2020, multiple appearances before registrars and the facilitation of two family dispute resolution conferences.
Ultimately the father disengaged from the proceedings and final orders in relation to the two children of the parties’ marriage were made on an undefended final basis as referred to above.
In summary, the Independent Children’s Lawyer seeks orders as follows:
(a)that the father pay his half share of the Independent Children’s Lawyer’s costs in the sum of $10,208;
(b)that the mother pay half share of the Independent Children’s Lawyer’s costs in the sum of $8,558 noting that the mother has already paid by way of contribution to the Independent Children’s Lawyer’s costs the sum of $1,650 in March 2017;
(c)that Order 12 made 16 November 2018 be discharged (such order providing that any surplus funds held by Legal Aid NSW on account of single expert fees be returned to the mother and father in equal shares upon conclusion of the proceedings);
(d)that the sum of $3,950 held on behalf the parties by Legal Aid NSW be released to pay partially in equal shares the parties’ respective share of the Independent Children’s Lawyer’s costs as ordered;
(e)that following partial payment referred to in the previous order:
(i)the mother pay the balance of the share of the Independent Children’s Lawyer’s costs within three months from the date of orders or at the conclusion of the family law property proceedings and from her share in those proceedings whichever is the earlier;
(ii)the father pay the balance of the share of the Independent Children’s Lawyer’s costs within three months from the date of orders or at the conclusion of the family law property proceedings and from his share in those proceedings whichever is the earlier;
In all the circumstances, it is appropriate that there be an order for the parties to pay the Independent Children’s Lawyer’s costs. In circumstances where the father disengaged from parenting proceedings necessitating an undefended hearing and where the mother retains the care of the two youngest children of the relationship, it is appropriate that the credit presently held by Legal Aid New South Wales be offset as against the mother’s liability for costs.
Orders will be made accordingly.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 18 December 2020
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