PARVIS & HASS

[2018] FCCA 3414

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARVIS & HASS [2018] FCCA 3414

Catchwords:
COSTS – Application for costs sought by the Independent Children’s Lawyer – Application dismissed

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Penfold & Penfold (1980) 144 CLR 311

Collins & Collins (1985) FLC 91-603

Applicant: MR PARVIS

Respondent: MS HASS

File Number: PAC 3096 of 2017

Judgment of: Judge Obradovic

Hearing date: 20 August 2018

Date of Last Submission: 28 September 2018

Delivered at: Parramatta

Delivered on: 30 November 2018

REPRESENTATION

Appearing for the Applicant: Ms Slewa

Solicitors for the Applicant: Bell Lawyers

Appearing for the Respondent: Ms Neuhaus

Solicitors for the Respondent:	Mahony Family Lawyers
Appearing for the Independent Children's Lawyer:	Ms Morton
Solicitors for the Independent Children's Lawyer:	Morton Family Lawyers

ORDERS

1. The Independent Children’s Lawyers’ application for costs is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3096 of 2017

MR PARVIS

Applicant

And

MS HASS

Respondent

REASONS FOR JUDGMENT

1. These are Reasons for Judgment in respect of an application for costs made by the Independent Children’s Lawyer.

2. The substantive proceedings for parenting orders were commenced by the father on 23 June 2017.

3. The Court made orders for the appointment of an Independent Children’s Lawyer on 29 August 2017. The father met the initial contribution fee of the costs of the Independent Children’s Lawyer in the amount of $1,650.00

4. The mother filed her Response on 26 September 2017.

5. The matter was listed for interim hearing on 12 February 2018, and then for final hearing from 28 to 30 May 2018. The matter was part-heard and adjourned for submission to 24 August 2018.

6. Shortly before the listing of the matter on 24 August 2018 the parties reconciled and they each filed their respective Notices of Discontinuance on 17 August 2018.

7. In preparation for the final hearing and in accordance with orders made, the father paid the entire cost of the Expert’s Report and the attendance costs of the expert at final hearing. Those costs were in excess of $17,500.

8. The father privately funded his legal representation. His solicitors briefed counsel who appeared and advocated on the father’s behalf both at the interim and at the final hearing.

9. The mother was in receipt of a grant of legal aid for the duration of the proceedings.

10. The principles in respect of costs orders in family law proceedings are well known. The starting position with respect to costs, as set out in s117 of the Act is that, subject to subsection 117(2), each party to proceedings under the Act shall bear his or her own costs. In addition, section 117(3) provides that were an Independent Children’s Lawyer is appointed, the Court must not make an order for the costs of the Independent Children’s Lawyer against a party who has received legal aid.

11. As such, s117(3) prohibits the Court making a costs order against the mother in respect of the costs of the Independent Children’s Lawyer.

12. The discretion to award costs is otherwise a broad discretion.[1]

    [1]  see for example Collins & Collins (1985) FLC 91-603.

13. The High Court held in Penfold & Penfold[2] that it is necessary for the Court to make a finding of justifying circumstances as an essential preliminary to the making of an order for costs. The Court is not required to specify the circumstances which justify the making of such an order.

    [2] (1980) 144 CLR 311

14. In the circumstances of this case, and noting the significant costs which the father has incurred to date, there are no circumstances justifying the making of any costs order. The general statutory position that each party to proceedings under the Family Law Act1975 shall bear his or her own costs has not been displaced.

15. Orders are made accordingly.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 30 November 2018