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…
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- AGLC
- Niem & Tong (No. 2) [2020] FamCA 1074
- Case
- [2020] FamCA 1074
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the determination of the applicable principles for awarding costs to the Independent Children’s Lawyer and the apportionment of those costs between the parties.
Foster J applied established principles regarding costs in family law proceedings, particularly concerning the role and remuneration of an Independent Children’s Lawyer. The court reasoned that both parents bore responsibility for the costs incurred by the Independent Children’s Lawyer. Consequently, the father was ordered to pay his share of the Independent Children’s Lawyer’s costs in the sum of $10,208. The mother was ordered to pay her share of $8,558, taking into account a previous contribution of $1,650. Further orders were made to facilitate the payment of the mother's outstanding liability, including the release of funds held by Legal Aid NSW and a timeframe for payment, either within three months or upon the conclusion of property proceedings.
Orders
Orders of the court
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).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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