SCOTT & SCOTT

[2009] FamCA 911

FAMILY COURT OF AUSTRALIA

SCOTT & SCOTT [2009] FamCA 911

FAMILY LAW – COSTS - Application for costs made by the Independent Children’s Lawyer against each of the parties - Circumstances of this case do not warrant departure from the orthodox rule that each party, including the Independent Children’s Lawyer, bear his and her own costs - Independent Children’s Lawyer’s application for costs is dismissed

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Scott

RESPONDENT: Ms Scott

INDEPENDENT CHILDREN’S LAWYER: Mr Marks, Solicitor

FILE NUMBER: NCC 668 of 2008

DATE DELIVERED: 15 September 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Honourable Justice Austin

HEARING DATE: 14 & 15 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sundstrom

SOLICITOR FOR THE APPLICANT: Kinnear & Company

COUNSEL FOR THE RESPONDENT: Mr Kenny

SOLICITOR FOR THE RESPONDENT: Ticehurst Foat Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stephen Marks Solicitor

Orders

1. The oral application for costs made by the Independent Children’s Lawyer against each of the parties is dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 668  of 2008

MR SCOTT

Applicant

And

MS SCOTT

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. The Independent Children’s Lawyer in these proceedings has made an application for costs in respect of his representation of the children.  The application is promulgated against each party.

2. The application invokes s 117 of the Family Law Act 1975 (“the Act”). The ordinary rule is that each party to the proceedings bears their own costs. However, a costs order may be made if justifying circumstances exist. The Act, in s 117(3), specifically recognises that a costs order may be made in favour of an Independent Children’s Lawyer.

3. When such an application is made, the court must disregard the fact that the Independent Children’s Lawyer is funded under a legal aid scheme – that is the provision found at s 117(5).

4. No order can be made in favour of the Independent Children’s Lawyer against a party to the proceedings who is the recipient of a grant of legal aid, or a party who would suffer financial hardship if that party had to bear a proportion of the costs of the Independent Children’s Lawyer – so provides s 117(4).

5. In this case, neither party is in receipt of a grant of legal aid, according to the submissions made by each of their counsel. Accordingly, I turn to the provisions of s 117(2A) to determine the application by reference to the criteria set out therein.

6. As to the financial circumstances of the parties, the parties have read in these proceedings their statements of financial circumstances recently filed.  The evidence permits a finding that the net pool of property available for distribution between the parties is slightly in excess of $1,000,000 net.  Despite the size of the matrimonial pool, however, very few of the assets comprising that pool are in liquid form.

7. The father has a gross salary of $680.00 per week, which is generated by his employment as a Manager.  The mother’s income is in the form of a Centrelink payment.

8. The conduct of the parties in these proceedings has been satisfactory and not deserving of any censure.  Quite the contrary, the manner in which the parties have negotiated a settlement in these proceedings entitles them to significant credit.

9. The proceedings were not necessitated by a failure by either party to comply with previous orders of the Court. 

10. Neither party has been wholly unsuccessful in the proceedings in respect of the parenting orders, which part of the proceedings concerns the Independent Children’s Lawyer.  On the contrary, the compromise reached between the parties with the assistance of the Independent Children’s Lawyer was manifestly in the best interests of the children. 

11. No relevant offers of settlement were made as between the parties and the Independent Children’s Lawyer concerning the parenting orders. 

12. In conclusion, I note that the appointment of the Independent Children’s Lawyer occurred as a consequence of an order made by Federal Magistrate Lapthorn in chambers on 20 June 2008, apparently without specific application by either party.

13. Having regard to those circumstances, I am not persuaded that the circumstances warrant departure from the orthodox rule that each party, including the Independent Children’s Lawyer, bear his and her own costs.

14. Accordingly, I dismiss the application for costs by the Independent Children’s Lawyer.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  18 September 2009