Russo & Lynn - [2020] FamCA 993

FAMILY COURT OF AUSTRALIA
Russo & Lynn [2020] FamCA 993

File number(s): PAC 3279 of 2019

Judgment of: FOSTER J

Date of judgment: 27 November 2020

Catchwords: FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer seeks order for costs where proceedings struck out – Where consideration of relevant principles – Order for costs made.

Legislation:
Family Law Act 1975 (Cth) ss 117, 117(2), 117(3), 117(4), 117(5)

Family Law Rules 2004 (Cth) rr 19.18(1)

Cases cited:
Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162

De Roma & De Roma [2013] FamCA 566

Gahen & Gahen (No 2) [2013] FamCA 936

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Parke & the Estate of the Late A Parke (2016) FLC 93-748

Number of paragraphs: 29

Date of last submission/s: 23 September 2020

Date of hearing: 14 September 2020

Place: Parramatta

For theApplicant: The Applicant did not appear

For theRespondent: The Respondent did not appear

Solicitor for the Independent Children's Lawyer: Ms Alaouie
ORDERS

PAC 3279 of 2019

BETWEEN:
MS RUSSO

Applicant

AND:
MR LYNN

Respondent

MS ALAOUIE

Independent Children’s Lawyer

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

27 NOVEMBER 2020

THE COURT ORDERS THAT:
1.That the applicant mother and respondent father have liberty to submit an application for waiver of fees to Legal Aid NSW in relation to the Independent Children’s Lawyer’s fees in these proceedings within 28 days.
2.That failing the applicant mother receiving a fee waiver pursuant to the previous order, the applicant mother pay Legal Aid NSW on account of the Independent Children’s Lawyer’s fees in these proceedings an amount of $1,650 within six months.
3.That failing the respondent father receiving a fee waiver pursuant to the previous order, the respondent father pay Legal Aid NSW on account of the Independent Children’s Lawyer’s fees in these proceedings an amount of $1,650 within six months.

Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Russo & Lynn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:

The present application is an application for costs by the Independent Children’s Lawyer appointed in ongoing parenting proceedings by order of a judge of the Federal Circuit Court of Australia on 27 November 2019.
Various interlocutory orders were made whilst proceedings remained in the Federal Circuit Court of Australia with various attendances involving the appearance or engagement of the Independent Children’s Lawyer.
On 28 May 2020 a judge of the Federal Circuit Court of Australia transferred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Russo & Lynn

Details

AGLC: Russo & Lynn [2020] FamCA 993
Case: [2020] FamCA 993
Decision Date: 27 November 2020

CaseChat Overview and Summary

In *Russo & Lynn*, heard by Foster J, the Independent Children’s Lawyer (ICL) sought an order for costs after the proceedings were struck out. The dispute concerned the allocation of responsibility for the ICL's fees.

The central legal issue before the court was whether an order for costs should be made in favour of the ICL, and if so, how those costs should be allocated between the parties, particularly in circumstances where the proceedings had been terminated. The court was required to consider the relevant principles governing cost orders in family law proceedings, especially concerning the ICL's entitlement to recover their expenses.

Foster J applied the principles relating to cost orders in family law matters, acknowledging the ICL's role and the potential for them to incur costs. The court determined that an order for costs was appropriate in this instance. The court then made specific orders regarding the payment of the ICL's fees, providing the parties with an opportunity to seek a waiver from Legal Aid NSW. Failing a waiver, both the applicant mother and respondent father were ordered to pay a specified amount on account of the ICL's fees to Legal Aid NSW within a set timeframe.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. That the applicant mother and respondent father have liberty to submit an application for waiver of fees to Legal Aid NSW in relation to the Independent Children’s Lawyer’s fees in these proceedings within 28 days.

2. That failing the applicant mother receiving a fee waiver pursuant to the previous order, the applicant mother pay Legal Aid NSW on account of the Independent Children’s Lawyer’s fees in these proceedings an amount of $1,650 within six months.

3. That failing the respondent father receiving a fee waiver pursuant to the previous order, the respondent father pay Legal Aid NSW on account of the Independent Children’s Lawyer’s fees in these proceedings an amount of $1,650 within six months.

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	PAC 3279 of 2019
Judgment of:	FOSTER J
Date of judgment:	27 November 2020
Catchwords:	FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer seeks order for costs where proceedings struck out – Where consideration of relevant principles – Order for costs made.
Legislation:	Family Law Act 1975 (Cth) ss 117, 117(2), 117(3), 117(4), 117(5) Family Law Rules 2004 (Cth) rr 19.18(1)
Cases cited:	Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162 De Roma & De Roma [2013] FamCA 566 Gahen & Gahen (No 2) [2013] FamCA 936 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Parke & the Estate of the Late A Parke (2016) FLC 93-748
Number of paragraphs:	29
Date of last submission/s:	23 September 2020
Date of hearing:	14 September 2020
Place:	Parramatta
For theApplicant:	The Applicant did not appear
For theRespondent:	The Respondent did not appear
Solicitor for the Independent Children's Lawyer:	Ms Alaouie

PAC 3279 of 2019
BETWEEN:	MS RUSSO Applicant
AND:	MR LYNN Respondent
MS ALAOUIE Independent Children’s Lawyer

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	27 NOVEMBER 2020