Osborne and Galloway (No 2)

[2020] FamCA 154

FAMILY COURT OF AUSTRALIA

OSBORNE & GALLOWAY (NO. 2) [2020] FamCA 154

FAMILY LAW – COSTS – where the Independent Children’s Lawyer seeks the parties pay a contribution to the costs of the New South Wales Legal Aid Commission – application dismissed.

Family Law Act 1975

Osborne & Galloway [2020] FamCA 46

APPLICANT: Mr Osborne

RESPONDENT: Ms Galloway

FILE NUMBER: WOC 113 of 2015

DATE DELIVERED: 24 March 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Baumann J

HEARING DATE: 18, 19, 20 and 21 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M De Vere

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Ms M Gillies SC

SOLICITOR FOR THE RESPONDENT: Hansons Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr R Greenaway

INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

Orders

1. That the Independent Children’s Lawyer’s application for costs be dismissed.

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 Osborne& Galloway 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 BRISBANE

FILE NUMBER: WOC 113 of 2015

Mr Osborne

Applicant

And

Ms Galloway

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 7 February 2020, the Court gave Reasons for the parenting Orders pronounced at that time in this matter (see Osborne & Galloway [2020] FamCA 46). I also directed the parties provide written submissions in response to the application by the Independent Children’s Lawyer’s (“ICL”) that the parties contribute to the costs of the ICL, estimated at $10,368.

2. On 28 February 2020 the mother and the father filed written submissions.  The ICL has not sought to file any submissions in reply.  I note that the application for costs by the ICL was not accompanied by any real submissions, but rather, I infer, because the ICL is bound by State legislation in New South Wales to seek an order for costs.  The application for costs was made at the conclusion of the hearing on 21 March 2019.

3. I make the following findings on the written submissions received which I have considered.  I also record that I am aware the decision the Court made is the subject of appeal, but I have not read the Notice of Appeal, and I do not find (nor has any party urged me to find) that I should not make a decision on this costs application pending the determination of the Appeal.  I find that:

   a)on 26 February 2020 the ICL confirmed that she will no longer be pressing the costs application in relation to the mother on the basis that the mother has a waiver from Legal Aid New South Wales on 31 May 2018;

   b)although the father is employed and owns his own home, his Financial Statement reveals gross weekly income of $1,902 and gross weekly expenses of $2,051.  His major expense is his home mortgage of $700 per week;

   c)the father says his interest in his home (in which his parents hold a 10% interest), is encumbered by a mortgage of $590,630.  He says, and I accept, if he was obliged to sell his home to make a contribution to the costs of the ICL he would be left with a nett amount of $65,000 (before sale expenses and after reimbursing his parents for their loan to him of $16,000 he used towards legal expenses);

   d)I accept the father’s evidence that to pay a contribution would cause financial hardship to him;

   e)although the father, at paragraphs 5 and 6 of his submissions, says that he was required to commence proceedings as a result of the mother’s “blatant disregard for the final Parenting Orders on 15 September 2016” and further the mother’s conduct in these proceedings “should be considered”, I am conscious that although such submissions are consistent with some findings made by the Court, the decision is under Appeal; and

   f)however, I accept that if the father had not commenced and pursued the Application as he did, the Orders made by the Court were unlikely to have been made.

Conclusion

1. Whilst I am acutely conscious of the needs of the New South Wales Legal Aid Commission to seek, in appropriate circumstances, reimbursement of fees incurred in meeting its statutory responsibilities for other cases, in this case I am not satisfied the circumstances justify an order for costs against either the mother or the father.

2. The Court will therefore order that the ICL’s application for costs be dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 24 March 2020.

Associate: 

Date:  24 March 2020