Reeves and Grinter

[2016] FamCA 63

FAMILY COURT OF AUSTRALIA

REEVES & GRINTER [2016] FamCA 63

FAMILY LAW – COSTS – Application for costs order by Independent Children’s Lawyer – Discussion of general principles – Where mother in receipt of legal aid – Where father in poor financial circumstances – Where father paid for entirety of Single Expert Report to progress the matter – Where small balance owed to Single Expert for witness fees – Where order made for father to pay only balance of witness fees.

Family Law Act 1975 (Cth) s 117

De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936
Reeves & Grinter [2015] FamCA 1037

APPLICANT: Mr Reeves

RESPONDENT: Ms Grinter

INDEPENDENT CHILDREN’S LAWYER: Osborne Legal

FILE NUMBER: SYC 6726 of 2013

DATE DELIVERED: 11 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 17, 18, 19 and 20 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boyle

SOLICITOR FOR THE APPLICANT: KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT: Mr Morley

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW Dubbo Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Siggins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Osborne Legal

Orders

1. That the father within 3 months from this date pay to the Independent Childrens Lawyer the sum of $1,555 for payment out to the Single Expert Dr E.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reeves & Grinter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 6726  of 2013

Mr Reeves

Applicant

And

Ms Grinter

Respondent

REASONS FOR JUDGMENT

1. The application for determination is the Independent Children Lawyer’s ( ICL) application for costs arising from concluded parenting proceedings relating to the child B born in 2006.

2. The hearing occupied four days from 17 to 20 August 2015, with orders and Reasons for Judgment delivered on 25 November 2015 (Reeves & Grinter [2015] FamCA 1037).

3. The application by agreement between the parties is considered on the basis of written submissions received from the ICL, the mother and the father.

ICL Costs

1. The law as to costs is well settled. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.

2. Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.

3. The relevant considerations in relation to an order for costs are set out in s 117(2A).

4. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:

   a)The financial circumstances of each of the parties to the proceedings;

   b)Whether any party has legal aid and the terms of any grant of aid;

   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 answers, 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 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.

5. Section 117(5) 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.

6. A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the Independent Children's Lawyer, because that terminology is susceptible to ambiguity. As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936, it could conceivably mean either:

   (a)The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or

   (b)The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.

7. In De Roma & De Roma [2013] FamCA 566 Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.

8. In De Roma (supra) at [20] – [21] Watts J said:

   20. In considering what order (if any) is just, the legislation mandates that the court have regard to those matters set out in s 117(2A) FLA.

   21. All the matters set out in s 117(2A)(a)-(f) FLA relate to the circumstances and conduct of the parties during the proceedings. Section 117(2A)(a) FLA mandates the court have regard to “the financial circumstances of each of the parties to the proceedings”. As already discussed, the Independent Children's Lawyer is not a party to the proceedings. However, s 117(2A)(g) FLA, namely “such other matters as the court considers relevant”, is wide enough to enable the court to take into account matters relating to the Independent Children's Lawyer’s conduct during the proceedings.

9. The threshold presumption as to each party bearing their own costs has no application to the ICL, who is not a party.

10. The law is well settled that there is power under the section, subject to other statutory provision referred to below, to make orders for or against the ICL and the Court may make such order as to costs of the ICL and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma (supra)).

11. Section 117(3) provides:

    To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.

12. Section117(4) provides:

    However, in proceedings in which an independent children's lawyer for a child has been appointed, if:

    (a)       a party to the proceedings has received legal aid in respect of the proceedings; or

    (b)      the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;

    The court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.

The ICL’s Application

1. The father was privately funded. The mother was in receipt of a grant of legal aid.

2. The issue is thus the contribution by the father, if any, to the ICL’s costs.

3. The ICL seeks an order for the father to pay costs of $9,696.47 being one half of the total ICL costs of $19,392.95 that included professional costs, $2,750 paid towards the fee for the Single Expert report, witness fees of the Single Expert of $1,300 and counsel’s fees.

4. In addition to funds paid by the ICL, the father has already paid $10,312.50 towards the Single Expert’s fees and $1,650 towards the Single Expert’s witness expenses.

5. Over and above the witness expenses fees paid by the ICL ($1,300) a balance is owed to the Single Expert of $1,555. 

6. The ICL has no capacity to pay the $1,555 owing to Dr E as legal aid funding is exhausted.

7. The father has modest income as set out the primary Reasons for Judgment. He has no assets of any significance.

8. Whilst the father was “unsuccessful” in the proceedings in failing to obtain an order for residence there were many issues that required judicial determination to get to the ultimate result. The father adopted the recommendations in the Single Expert Report. Indeed, so did the ICL.

9. The father has funded the Single Expert report and to date part of the Single Expert’s witness expenses. That funding has come from his family together with significant additional funding for his legal fees. 

10. The mother, in receipt of a grant of legal aid has no obligation to the ICL for costs.

11. It is inappropriate that a Single Expert be left unpaid where there is capacity to meet the balance owing. It is difficult enough to obtain the services of such experts.

12. In all of the circumstances there should be an order requiring the father to meet the balance of the Single Expert witness fees of $1,555 within a reasonable period.

13. Otherwise, the mother seeks an order discharging the order made on the 15 March 2015 as to the parties, “unless reduced on the basis of financial hardship”, paying equally the setting down and hearing fees. There is no evidence that she has applied to reduce that fee on the basis of hardship notwithstanding her assertion that the “exemption” does not apply in her circumstances as a legally aided respondent.   No order such will be made.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 February 2016.

Associate: 

Date:  11 February 2016