Payne and Kennett and Anor

[2017] FamCA 400

FAMILY COURT OF AUSTRALIA

PAYNE & KENNETT AND ANOR [2017] FamCA 400

FAMILY LAW – COSTS – Child representative – Where all applications before the Court dismissed due to non-appearance of the parties – Where parties ordered to pay the costs of the Independent Children’s Lawyer

Family Law Act 1975 (Cth) ss 117, 117(2), 117(2A), 117(4), 117(5)

Gahen & Gahen No. 2 [2013] FamCA 936
De Roma & De Roma [2013] FamCA 566

APPLICANT: Ms Payne

FIRST RESPONDENT: Ms Kennett

SECOND RESPONDENT: Mr Trevor

INDEPENDENT CHILDREN’S LAWYER: Ms Quirk

FILE NUMBER: BRC 4442 of 2014

DATE DELIVERED: 16 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 May 2017

REPRESENTATION

APPLICANT – SELF‑REPRESENTED LITIGANT: No appearance

FIRST RESPONDENT – SELF‑REPRESENTED LITIGANT: No appearance

SECOND RESPONDENT – SELF‑REPRESENTED LITIGANT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Quirk of Crawford Ryan Lawyers Pty Ltd

Orders

1. All applications before the Court are dismissed.

2. The proceedings be removed from the active pending cases list.

3. Within two months of this date the father pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the sum of $1,622.34.

4. Within two months of this date the mother pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the sum of $1,622.34.

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 Payne & Kennett and Anor 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 PARRAMATTA

FILE NUMBER: BRC 4442 of 2014

Ms Payne

Applicant

And

Ms Kennett

First Respondent

And

Mr Trevor

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter there being no appearance by the applicant and respondents, all applications before the Court are dismissed and the proceedings are removed from the pending cases list.

2. The outstanding application before the Court is the application for costs by the Independent Children's Lawyer.

3. The parties have now disengaged from these proceedings, and as a consequence of that disengagement and presumably the relocation of the subject child, L to New Zealand pursuant to orders made on 19 July 2016, the parties’ various applications before the Court have been dismissed.

4. The Independent Children’s Lawyer seeks an order that the parties pay equally the costs of the Independent Children's Lawyer that are assessed in accordance with exhibit “A” in a total of $3,244.67. The Independent Children's Lawyer seeks an order that each of the parties pay the sum of $1,622.34.

5. The law as to costs is well settled. 

6. Section 117 of the Act provides that subject to certain qualifications, each party to the proceeding shall bear his or her own costs. 

7. Section 117(2) provides that if the Court is of the opinion there are circumstances that justify it in doing so, the Court can make such order as to costs as the Court thinks fit.  However, s 117(5) of the Act provides:

   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.

8. The meaning and ambit of those previous have been discussed by the Court previously and in that regard see the comments of Austin J in Gahen & Gahen No. 2 [2013] FamCA 936, and Watts J in De Roma & De Roma [2013] FamCA 566.

9. The law is well-settled 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.  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.

10. Section 117(4) provides, of course, that in the event where there is a grant original Legal Aid to either party, that party cannot be the subject of an order for costs in relation to the Independent Children’s Lawyer.

11. Both parties in these proceedings have been privately funded in relation to these proceedings. 

12. In all of the circumstances and having regard to the special assistance provided by the Independent Children's Lawyer in the context of these proceedings, it is appropriate under s 117(2A) to make an order for the parties to share equally the Independent Children's Lawyer’s costs. 

13. There is no evidence as to the financial circumstances of the parties before the Court. 

14. Neither party is in receipt of a grant of aid.

15. There are no adverse issues in relation to the parties’ conduct in relation to these proceedings as it relates to interlocutory issues and the proceedings have now been terminated as a consequence of the parties’ failure to remain engaged.

16. In all of the circumstances, it is appropriate that an order be made as sought by the Independent Children's Lawyer and orders will be made accordingly.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 May 2017.

Associate: 

Date:  8 June 2017