Russo & Lynn
[2020] FamCA 993
•27 November 2020
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 proceedings to this Court and on that day made certain interim orders in relation to the property of the parties.
On 3 July 2020 the proceedings were before a registrar of this Court. On that day there was no appearance on behalf the respondent father, the applicant mother’s solicitor appeared as did the Independent Children’s Lawyer. On that day proceedings were adjourned for further directions before a registrar on 20 August 2020.
On 20 August 2020 the mother’s solicitor sought leave and was granted leave to withdraw from the proceedings. There was no appearance by or on behalf of the respondent father. Proceedings were adjourned for judicial case management to 27 August 2020.
On 27 August 2020 there was no appearance by or on behalf of the applicant mother or the respondent father, and the Independent Children’s Lawyer appeared. Orders were made that the applicant mother file and serve a Reply to the father’s Amended Response filed 20 November 2019 with that Reply setting out, with particularity, orders sought by the mother as to property by no later than 4 September 2020. It was further ordered that in the event there was no appearance by or on behalf of the applicant and the respondent on the adjourned date, proceedings would be struck out and dismissed. It was further ordered that in the event the proceedings were dismissed, the Court would receive short submissions from the Independent Children’s Lawyer as to the Independent Children’s Lawyer’s costs. The Independent Children’s Lawyer was ordered to notify the applicant and respondent by ordinary prepaid post and by email, if an email address was known, as to the orders made. Proceedings were adjourned for further judicial case management to 14 September 2020.
On 14 September 2020 there was once again no appearance by or on behalf of the applicant mother or respondent father and it was noted that the Independent Children’s Lawyer had duly notified the applicant and respondent of the orders made 27 August 2020. It was ordered:
(1)That the proceedings be struck out and dismissed.
(2)That the Independent Children’s Lawyer file and serve short written submissions as to the Independent Children’s Lawyer’s application for costs by no later than 2 October 2020.
(3)That the applicant and respondent file any short submissions in response thereto by no later than 16 October 2020.
(4)That upon completion of submissions judgment reserved as to costs.
On 2 November 2020 judgment was reserved as to costs.
COSTS
The Independent Children’s Lawyer seeks an order that the father and paternal grandmother pay the costs thrown away of the preparation for and attendance on the first day that the matter had been listed for trial, including counsel’s fee which was an amount of $3,608.
The law as to costs is well settled. Section 117 of the Act provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.
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.
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.
Section 117(3) provides:
(3)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.
Section 117(4) provides:
(4)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.
Section 117(5) provides:
(5)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.
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.
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.
The threshold presumption as to each party bearing their own costs has no application to the Independent Children’s Lawyer, who is not a party.
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 and 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: (De Roma & De Roma (supra)).
The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) which states:
Method of calculation of costs
(1) The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162 that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.
Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93-748 at [130]:
If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…
It is the case that the parties in these proceedings had property and, particularly, it was foreshadowed by orders made 28 May 2020 that the wife would receive an interlocutory sum of $30,000 with the balance of funds to be deposited into a solicitor’s trust account. Otherwise, the Independent Children’s Lawyer refers to the financial statement filed by the mother in the course of proceedings on 15 July 2019 asserting that total property owned by her was $1,008,000 with total liabilities of $800,742. Otherwise, the father filed a financial statement on 7 August 2019 asserting total property owned by him to have a value of $1,582,981 with total liabilities of $1,678,000. The father asserted an average weekly income of $2,400 per week.
Neither party is in receipt of a grant of legal aid.
Otherwise, it is contended on behalf of the Independent Children’s Lawyer that the parties have not complied with certain interim orders made during the course of the proceedings and have put the Independent Children’s Lawyer to the expense of appearing before the Court on a number of occasions until ultimately the mother and father failed to appear and proceedings were struck out.
The Independent Children’s Lawyer submits that appropriate orders in the circumstances of this matter are as follows:
(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.
In the circumstances, it is proper that there be an order for payment of the Independent Children’s Lawyer’s costs as sought. An order will be made accordingly.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 27 November 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Jurisdiction
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