Richam and Keegan (No 2)

[2020] FamCA 771

FAMILY COURT OF AUSTRALIA

RICHAM & KEEGAN (NO. 2) [2020] FamCA 771

FAMILY LAW – COSTS OF THE INDEPENDENT CHILDREN’S LAWYER – Where there is a significance disparity in income – Where the husband will pay
two-thirds of the costs of the ICL – Where the wife will pay one-third of the costs of the ICL.  

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Ms Richam

RESPONDENT: Mr Keegan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 4946 of 2015

DATE DELIVERED: 15 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: Dealt with by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITORS FOR THE APPLICANT: Anne Day & Associates

SOLICITOR FOR THE RESPONDENT: Mr Marsh

SOLICITORS FOR THE RESPONDENT: Paul Marsh & Associates

INDEPENDENT CHILDREN’S LAWYER: Ms Foini

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:
Legal Aid NSW

Orders

1. Within 28 days of the date of these Orders the father, Mr Keegan, pay two-thirds of the costs of the Independent Children's Lawyer and the mother, Ms Richam, pay one-third thereof.

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 Richam & Keegan 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 SYDNEY

FILE NUMBER: SYC4946 of 2015

Ms Richam

Applicant

And

Mr Keegan

Respondent

And

Independent Children's Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

The proceedings

1. On 24 April 2020 I delivered Reasons for Judgment and made Orders in relation to parenting and financial issues herein, following a five-day trial on 16, 17, 18, 19 and 20 December 2019.  The Independent Children's Lawyer ("the ICL") sought orders that the parties pay her costs in the sum of $22,360.50, in the proportions of $12,005.25 and $10,355.25 by the mother and father respectively.  The ICL indicated that the differential arose due to the father having already made a contribution toward the fees of the single expert.

2. The mother raised no issue as to quantum but proposed that the father pay the whole of the costs of the ICL.  Her counsel set out the basis for this proposal in written submissions dated 27 May 2020.

3. On 13 May 2020 I directed that each of the parties file and serve written submissions in relation to the costs of the ICL within 14 days.  The mother complied with this direction and filed her submissions on 27 May 2020.  The father filed his material in relation to the costs of the ICL on 31 August 2020.  The father consented to the orders proposed by the ICL in relation to payment of her costs.

Consideration

1. Applications for orders for costs are determined in accordance with section 117(2A) of the Family Law Act, which provides as follows:

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties 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 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.

2. Sub-sections (b), (d) and (f) of section 117(2A) are irrelevant for present purposes. Neither party was in receipt of a grant of legal aid and there was no failure to comply with previous orders of the court. I was taken to no offer of settlement made by either party.

Section 117(2A)(a) the financial circumstances of each of the parties to the proceedings

1. The Orders of 24 April 2020 included provision for alteration of property interests between the parties.  In round figures, the effect of these orders was to vest net assets and superannuation to the value of approximately $2 million in the father and $1.6 million in the mother.  I do not attach weight to the comparative net asset position of the parties in the determination of the application for the costs of the ICL.

2. It is the case, however, that there is a significant imbalance in the income positions of the parties.  The father is a health professional who earns a significant income.  The mother is in the process of obtaining qualifications for employment.  In my view, this consideration suggests that there is a basis for unequal contribution to the costs of the ICL.

Section 117(2A)(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

and

Section 117(2A)(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. The mother contended that the father should bear the whole of the costs of the ICL, because he persisted with a parenting case which had minimal prospects of success.  The father sought orders for a change in primary residence of the child, X, such that she spend eight and six nights per fortnight with himself and the mother respectively.

2. The position of the mother, until the final day of the trial, was that the child should live with her and spend four nights per fortnight in the care of the father.  This outcome would alter a status quo 18 months duration, in which the child lived with the mother and spent five nights per fortnight with the father.

3. Ultimately, I made orders that the child live with the mother and spend five nights per fortnight with the father.  These orders reflected the proposals of the ICL.

4. The mother persisted with her application that she have sole parental responsibility for the child.  She was unsuccessful in this application and orders were made for equal shared parental responsibility.

5. The mother similarly was unsuccessful in her application for orders that the father lodge financial security, before he would be permitted to travel to India with the child.  The father had made previous trips with the child to visit his family in India and there was no suggestion that he had in the past or would in future fail to return her to Australia.

6. Prior to the trial, the mother had refused to consent to the child travelling to India with the father on more than one occasion.  Accordingly, he was put to the expense of Applications in a Case to facilitate these trips to visit his family with the child.

7. In my view, a longitudinal examination of the conduct of the parties throughout this litigation suggests that neither displayed conduct which is immune from criticism.  Both parties chose to focus on their disputes with each other and "point scoring" exercises, which seemed to me to lengthen the trial time unnecessarily.  At various times, each of the parties acted unreasonably:  for example, the mother's refusal to consent to the father's travel to India with the child and his persistence with an application for a change of primary residence.

8. On balance, I conclude that one party's unreasonable conduct essentially balances out that of the other.  I am not persuaded that this factor supports a departure from the proposal of the ICL for payment of her costs.

Section 117(2A)(g) such other matters as the court considers relevant

1. Neither party advanced any submission pursuant to this sub-section.

Conclusion

1. It seems to me that the significant financial imbalance between the parties, in terms of an income stream, warrants a conclusion that the father should bear a greater proportion of the costs of the ICL.  The total amount of these costs is $22,360.50, of which the father has already paid $1,650.  I will make orders to the effect that the mother and the father respectively pay one-third and two-thirds of the costs of the ICL.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 September 2020.

Associate: 

Date:  15 September 2020