Schach & Birrell (No. 4)

[2009] FamCA 349

FAMILY COURT OF AUSTRALIA

SCHACH & BIRRELL (NO. 4) [2009] FamCA 349

FAMILY LAW – COSTS – applicant wholly unsuccessful – respondent on Legal Aid - applicant to pay respondent and Independent Children’s Lawyer’s costs paid in two instalments

Family Law Act 1975 (Cth)

APPLICANT: Mr Schach

RESPONDENT: Ms Birrell

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 5060 of 2008

DATE DELIVERED: 19 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms A. Du Barry

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr O.M. Keen

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Alderman Redman Lawyers and Mediators

Order

1. That the father pay to the Independent Children’s Lawyer by way of costs the total sum of FOUR HUNDRED AND FIFTY DOLLARS [$450.00] to be paid as follows:

   (a)The sum of TWO HUNDRED AND TWENTY FIVE DOLLARS [$225.00] by 19 August 2009; and

   (b)The sum of TWO HUNDRED AND TWENTY FIVE DOLLARS [$225.00] by 19 February 2010.

2. That the father pay to the Trust account of the mother’s solicitors on behalf of the mother by way of costs the total sum of THREE HUNDRED AND THIRTY DOLLARS [$330.00] to be paid as follows:

   (a)The sum of ONE HUNDRED AND SIXTY FIVE DOLLARS [$165.00] by 19 August 2009; and

   (b)The sum of ONE HUNDRED AND SIXTY FIVE DOLLARS [$165.00] by 19 February 2010.

IT IS NOTED that publication of this judgment under the pseudonym Schach & Birrell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5060 of 2008

MR SCHACH

Applicant

And

MS BIRRELL

Respondent

EX TEMPORE REASONS

1. As a consequence of the orders that I have now made in relation to the father's application in a case filed on 3 December 2008, namely, dismissing that application and removing it from the active pending cases list, both the mother and the Independent Children's Lawyer, through their respective counsel, have made applications for costs.

2. The amount sought firstly by the Independent Children's Lawyer is a total of $676, which has been calculated on the legal aid family law scale of $169 per hour.  Mr Keen seeks costs for four hours, being two hours' preparation and two hours' attendance in court.  That totals $676.  Ms Du Barry for the mother seeks somewhat less namely, $507, which is still calculated at the hourly rate of the legal aid scale, but she seeks a total of three hours, which is one hour's preparation and two hours' attendance in court.  Thus the total is $1183.

3. The basis of the application for costs is that the father has been wholly unsuccessful in his application.  The father opposes the application.  He has not said anything to me about the justification for the order, but there is not much he could say, I suppose, because of course it is obvious that the father has not been successful, given that I have dismissed his application. 

4. What the father has logically and necessarily concentrated on is his ability to meet any order for costs, and in that regard he says he has no ability.  His income is by way of Centrelink benefit, namely a Newstart allowance, which he commenced to receive in November, and he receives rental assistance as well.  The total is $570 per fortnight, of which $110 is for rental assistance.  That is his only income. 

5. In terms of his expenses, his major expense is his rent of $500 a fortnight.  He has a motor vehicle and furniture.  He has $350 in the bank, but $250 of that is earmarked for his next rent payment.  He does not have any debts of any significance.  He tells me that he went back to New Zealand last year and he was successful in obtaining a job there, but he gave up that job, obviously, when he left New Zealand to come back to Australia to renew these proceedings.  His experience is in retail sales.  He has not yet been able to obtain a job in Australia.

6. As with any application for costs, section 117 of the Family Law Act governs it. Turning to that section, it provides as follows:

   (1)  Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)  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 subsections (2A), (4) and (5) 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.

7. Sub-section 117(2A), sets out the factors which I have to have regard to in considering what order, if any, should be made. Subparagraph (a) tells me I have to have regard to the financial circumstances of each of the parties to the proceedings, (b) provides that it is relevant if any party to the proceedings is in receipt of assistance by way of legal aid, under (c) the conduct of the parties in relation to the proceedings is relevant, (d) is relevant if the proceedings were necessitated by the failure of a party to comply with previous orders, (e) asks whether any party to the proceedings has been wholly unsuccessful in the proceedings, (f) asks whether either party to the proceedings has made an offer in writing, and (g) tells me that I can have regard to such other matters as the court considers relevant.

8. In my view the three factors which are relevant here are subparagraphs (a), (b) and (e), namely, the financial circumstances of the parties, the fact that the mother is on legal aid, and the fact that the father has been wholly unsuccessful.

9. Of course, the Independent Children's Lawyer has also made an application for costs, and as is perhaps immediately obvious, I therefore take into account that the Independent Children's Lawyer is funded by the Legal Services Commission and those funds are finite, and I need to have regard to safeguarding the public purse or ensuring that the public purse is not unnecessarily utilised in proceedings where one party has been wholly unsuccessful.

10. In terms of the justification for the orders sought, in my view there is ample justification, in that, as I say, the father has been wholly unsuccessful in the proceedings.  I could add to that the conduct of the father, and by that I mean it is not just a case of the application being dismissed, but when one looks, as I did in some detail yesterday, at the application and the content of it, there was only one paragraph out of almost 20 paragraphs that should have found its way into such an application.  All of the other paragraphs except one, and that raised an issue as to costs, were either statements or raised issues where orders were not sought, and in my view that is highly relevant to the question of whether an order for costs is justified.  If the application itself is ill‑founded and has no obvious chance of success, then that adds to the need for an order for costs, given that the mother was obliged to respond to it in the way that she did, the Independent Children's Lawyer was obliged to respond to it in the way that she did, and because the father still pursued the application.

11. Although in my view there is no doubt that there is justification for making an order for costs, the father Mr Schach has in effect put to me that his financial circumstances should result in there being no order at all, and that is what I need to consider.  The father is receiving Centrelink benefits.  He has expenses, which on the face of it do not allow him to save much, if anything.  I note, though, he has been able to save effectively $100, which he has net in his bank account.  He has $350 there, but $250 of it is earmarked for rent.  I am sure that that other $100 will be used by the father to meet ongoing expenses, but that tells me he is able to retain money in his bank account for expenses, as and when they fall due. 

12. Clearly he does not have sufficient funds to meet the order for costs that is sought, but it is not a case where the order, if made, has to require the amount of the costs to be paid in one lump sum.  I can set terms, and for example provide for time payment.  Thus it is not necessarily a case of looking at the financial circumstances as they exist today, and I can take a long-term view of that.  The father is currently receiving a Newstart allowance.  He is obviously looking for work and he may obtain work, and that may change his financial circumstances, or he could go back to New Zealand where he says he can easily obtain work and indeed resume the job that he left there to come to Australia.

13. Accordingly there are a number of things that might happen in the future, but of course I cannot speculate too much about that.  I have to approach this matter on the basis of what his current financial circumstances are and look forward as best I can. 

14. In my view there simply has to be an order for costs.  The application should not have been brought.  The question for me then is how much that order should be, and what terms I should apply to the payment of the amount.

15. The father cannot avoid an order being made because he says he cannot afford it.  He will have to shift his priorities in terms of how he spends the money that he has available because the consequence of him bringing this unmeritorious application is that the mother and the Independent Children's Lawyer have incurred costs, and unnecessarily so.  They needed to respond.  The father gave no indication of not proceeding with his application and there was no suggestion of a compromise.  His position was that he wanted to proceed with that application, and we did.  However he has to realise that he cannot simply bring applications which are unmeritorious, because there will be consequences and one consequence, apart from dismissing any unmeritorious application, has to be a costs order. 

16. In the circumstances the order that I propose to make is that the father will pay costs in the total sum of $780.  That comprises $450 for the Independent Children's Lawyer’s costs and $330 for the mother’s costs.

17. In terms of payment of that total amount, I am going to allow a total of 12 months, but I want one payment made within six months and the second payment made within a further six months.  It might sound complicated, but I am attempting to ensure that the father’s financial circumstances allow him to meet this order that I am proposing to make.  Thus I propose is $390 be paid within six months and the balance of $390 be paid within a further six months.

18. In terms of allocating that between the Independent Children's Lawyer and the mother, of each of those $390 payments, $225 will be for the Independent Children's Lawyer and $165 for the mother. 

I certify that the preceding nineteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland

Associate: 

Date: