R.A.W. and C.A.W. and Minister for Health Family and Children's Services and J.A.S.C. and R.N.F. and D.A.W. - [2000] NTSC 59

R.A.W. and C.A.W. and Minister for Health Family and Children's Services and J.A.S.C. and R.N.F. and D.A.W. [2000] NTSC 59
PARTIES:R.A.W. and C.A.W.

and
Minister for Health Family and Children's Services
and
J.A.S.C. and R.N.F.
and
D.A.W.

TITLE OF COURT: THE SUPREME COURT OF THE
NORTHERN TERRITORY OF AUSTRALIA

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING FEDERAL JURISDICTION IN FAMILY LAW
FILE NO:111 of 1999 (9917207)
DELIVERED:  14 July 2000
HEARING DATES:  29 May 2000
JUDGMENT OF:  Mildren J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicants:B. Cassells
First Respondent:  S. Gearin
Second Respondents:                  J. Terry
Child's Representative:               S. Barr
Solicitors:
Applicants:Terrill and Associates
First Respondent:  M.C. Orwin and Associates
Second Respondents:                  J. Terry
Child's Representative:               Northern Territory Legal Aid Commission
Judgment category classification:    C
Judgment ID Number:
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
R.A.W. and C.A.W. and Minister for Health Family and Children's Services and J.A.S.C. and R.N.F. and D.A.W. [2000] NTSC 59
No. 111 of 1999 (9917207)

BETWEEN:
R.A.W. AND C.A.W.

Applicants
AND:
MINISTER FOR HEALTH FAMILY AND CHILDREN'S SERVICES

First Respondent
AND
J.A.S.C. AND R.N.F.
Second Respondents
AND
D.A.W.
Third Respondent

CORAM: MILDREN J
REASONS FOR DECISION
(Delivered 14 July 2000)
Mildren J

This was an application made by the parents by adoption of the third respondent, the mother of the child Samantha, for a residency order in respect of Samantha. The first respondent had sole rights in respect of the guardianship of Samantha pursuant to an order of the Northern Territory Family Matters Court. One of the second respondents was the foster mother of the child. She and her husband, the other second respondent, also sought a residency order in respect of the child.
The applications were heard in September 1999 and lasted thirteen days. On 8 October 1999, I delivered reasons for judgment in which I concluded that the best interests of the child required a residency order in favour of the applicants. I indicated that there ought to be a gradual handover of residency from the second respondents to the applicants and that there ought to be contact orders made in favour of the second and third respondents. I reserved those issues and the question of costs to see if those issues could be resolved by the parties.
Thereafter, the second respondents brought an application that I ought to disqualify myself from the further hearing of this matter. On 16 November 1999, after hearing submissions, I ordered that that application be dismissed with costs.
On 17 November 1999, after hearing further submission, I made the residency and contact orders foreshadowed in my judgment of 8 October 1999. However, the question of the costs of the proceedings remained outstanding and was adjourned to a later time for further hearing.
On 29 May 2000, I was informed by counsel that all remaining costs issues, except one, had been resolved by the parties. The only outstanding issue was an application by the child's separate representative for his costs. It was agreed as between the relevant parties that if an order were to be made, the quantum of the child's separate representative's costs is the sum of $15,000.
The separate representative's application was for an order against both the applicants and the second respondents. No order was sought against the first and third respondents.
Section 117(1) of the Family Law Act provides that, subject to subsection (2) and s118, each party to proceedings under this Act shall bear his or her own costs. Section 118 deals with frivolous or vexatious proceedings and has no bearing on this matter. Section 117(2) provides:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to sub-section (2A) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
It was not submitted that the Rules of Court had any bearing on this matter. I have considered Order 38 of the Family Law Rules. There does not appear to me to be any Rule which is of relevance to this application:
Section 117(2A) of the Act provides:
117(2A) [Matters relevant to costs order] In considering what order (if any) should be made under sub-section (2), the court shall have regard to-
(a)the financial circumstances of each of the party to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(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 answer 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, in accordance with section 117C or otherwise, 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.
It is common ground that the separate representative was a lawyer in the employ of the Northern Territory Legal Aid Commission. The availability of a costs order in favour of a legally aided separate representative has been acknowledged in a number of decisions of the Family Law Court: see Telfer v Telfer (199) FLC 92-688; Re David (1998) FLC 92-809 (Full Court); Lyris v Hatziantoniou (1999) FLC 92-840; and by some of the Judges of the High Court: Re JJT & Ors; ex parte Victorian Legal Aid (1998) FLC 92-812, at p85, 188 (Kirby J); at p85, 199 (Hayne J); and at p85, 201 (Callinan J). Factors which have been considered in favour of a costs order include the fact that legal aid funds are finite and are notoriously the subject of a variety of demands: see Telfer, supra, at 83, 141; David, supra, at 85, 148; and Lyris, supra, at 85, 829; by the fact that the conduct of the parties has materially contributed to the need to appoint a separate representative: see Tefler, supra, at 83, 141; Lyris, supra, at 85, 829; and the fact that a party or the parties have the financial capacity to meet the separate representative's costs: see Tefler, supra, at 83,141; Lyris, supra, at 85 ,829; and in David, supra, at 85,149, the Court ordered that the party at fault pay a proportion of the separate representative's costs.
It was not submitted that the conduct of these parties contributed to the need to appoint a separate representative. Both the applicants and the second respondents had strong claims to a residency order and the outcome was finely balanced. The need for the appointment arose solely from the conduct of the third respondent, against whom a costs order is not sought.
It was submitted by Miss Terry for the second respondents that the need for the appointment was questionable given that both parties were legally represented by competent counsel and that the Minister, who was a neutral party, played an active role in the proceedings. However, the appointment was made by consent of the parties. No party sought to discharge the appointment and the Minister was not, strictly speaking, neutral, as the Minister supported an order in favour of the applicants. In the circumstances, I do not consider that I should find that there was no need for the appointment to continue. The submissions of the separate representative were of value in resolving the matter. In this respect, the separate representative protected the public interest as much as the separate interests of the child.
The applicants are aged in their late forties. Their financial position is set out in my reasons for judgement delivered on 8 October 1999. The costs of these proceedings must have drained their financial resources somewhat, but to what extent, given that they have settled their claim for costs against the second respondents and their solicitor, I cannot tell. Mrs W has had to give up work in order to look after the child. This leaves only Mr W's income to support the whole family, including the other child of the third respondent whom they are also raising. Neither of the applicants were in receipt of any income in the many months leading up to and during the hearing, although they received some financial assistance amounting to half of their accommodation costs during this period. Any costs order against them will mean less money available for the children's upbringing and for Mr and Ms W's ultimate retirement.
The financial position of the second respondents is set out in an affidavit sworn on 20 December 1999. According to that affidavit, the second respondents lost wages totalling $42,750 during the period they were looking after the child. They have expended over $90,000 in legal costs. It may be, but I do not know, that they will have to pay some costs to the applicants over and above the costs orders I have already made against them. They have little left of their cash resources (only some $5,800 odd between them). They owe a further $17,300, approximately, to their solicitors and will need to borrow. Mrs J.A.S.C. is 58 years of age and although she has an interest in four properties, her interests in these properties is either a one- third interest or a half interest. Two of these properties are her sons' residences. She and her partner live in a third property. The fourth property, in which she has a one-third interest with her sons, is presumably a rental property. Each property is worth in the order of $150,000 to $160,000. Only the second respondents' home is mortgaged. Clearly it would be difficult for the second respondents to borrow upon any of the other properties.
In the peculiar circumstances of this case, given that neither the applicants nor the second respondents were in any way to blame for the fact that these applications had to be brought; given that both had strong claims which were not capable of settlement (as both claimants had expert advice that the interests of the child would best be served by an order in their favour respectively); given the facts and circumstances relating to their financial capacity to make any payment; and having regard to their past and future expenses, I would not have made any order in favour of the separate representative against either party However, the conduct of the second respondents in pursuing the issue of the applicants' fitness on flimsy grounds, considerably lengthened the hearing. Whilst there was some evidence to support that aspect of the second respondents' claim, the evidence was inherently weak and unlikely to influence the outcome. But, notwithstanding warnings given, the second respondents pursued this line of argument with some vigour. I consider that this lengthened the hearing by about five or six days. In the end, the second respondents did not succeed on this issue. In those circumstances, I consider that the second respondents should be ordered to pay part of the separate representative's costs, which I fix at $7,000.
In conclusion, there will be no order against the applicants. There will be an order that the second respondents pay costs to the separate representative which I fix at $7,000.
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