TIEN & BIGGENS

[2017] FamCA 652

FAMILY COURT OF AUSTRALIA

TIEN & BIGGENS [2017] FamCA 652

FAMILY LAW – COSTS – Independent Children’s Lawyer’s costs – Where consideration of general principles – Where appropriate that order be made for father to pay contribution to the Independent Children’s Lawyer’s costs.

Family Law Act 1975 (Cth) ss 117
Family Law Rules 2004 (Cth) r 12.13

De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936

APPLICANT: Mr Tien

RESPONDENT: Ms Biggens

INDEPENDENT CHILDREN’S LAWYER: Mr Whelan

FILE NUMBER: DGC 3282 of 2013

DATE DELIVERED: 25 August 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 14 August 2017

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: No appearance

RESPONDENT – SELF-REPRESENTED LITIGANT: Ms Biggens

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Coady solicitor as agent for Mr Whelan of Mark Whelan Lawyer

Orders Made On 14 August 2017

1. The father’s Initiating Application filed 15 November 2013 be struck out and dismissed.

2. Leave is granted to the Respondent mother to withdraw her Response filed 6 May 2014 and that Response is accordingly dismissed.

3. These proceedings be removed from the active pending cases list.

4. By consent, the Respondent mother pay, by way of Legal Aid contribution, to Legal Aid NSW the sum of $1,650.00 within six (6) months of this date noting that notwithstanding this order the mother may make application to Legal Aid NSW to waive or reduce her contribution or make payments on some other arrangement by agreement.

5. The Applicant father pay, by way of Legal Aid contribution, to Legal Aid NSW the sum of $1,650.00 within three (3) months of this date.

THE COURT NOTES THAT

1. The Court is informed by the mother today that the father has had recent face-to-face contact with the child in her presence and has regular electronic communication with the child on at least a weekly basis.

2. It is the mother’s expectation that the father will again be present in Australian by late September 2017 and it is her proposal to seek to engage in family mediation in the best interest of the child.

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 Tien & Biggens 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 PARRAMATTA

FILE NUMBER: DGC 3282  of 2013

Mr Tien

Applicant

And

Ms Biggens

Respondent

REASONS FOR JUDGMENT

1. On 14 August 2017 the primary parenting proceedings between Mr Tien (“the father”) and Ms Biggens (“the mother”) were resolved as discussed below. Subsequently the Independent Children’s Lawyer (“ICL”) made application for the father to pay a contribution to the ICL costs. An order was made on 14 August 2017 as set out above and the following are reasons therefore.

2. In that context it is useful to consider the history of the proceedings.

3. The father commenced proceedings by application filed 15 November 2013 in the Federal Circuit Court of Australia at Dandenong in Victoria.

4. In that application, in summary, he sought orders that he and the mother have equal shared responsibility for the child B born in 2007 and that he have defined time with the child in school holidays and on other special occasions.

5. It appears that at the time of filing the application the father was unaware as to the circumstances of the mother or the child who was then aged six. On 29 January 2014 a Commonwealth Information Order was made as to the whereabouts of the mother and the child. Subsequently, by way of substituted service, a copy of the father’s Initiating Application was forwarded by the Court by prepaid post to the mother.

6. On 6 May 2014 the father appeared in Court in person and proceedings were transferred to the Parramatta Registry of the Federal Circuit Court of Australia. On 7 July 2014 the father appeared in Court in person and proceedings were transferred to the Family Court of Australia.

7. On 2 December 2014, the father appeared before the Court in person and an order was made for the appointment of an ICL to represent the interests of the child and the parties were directed to attend for the purposes of children’s and parents intake assessment interviews on 12 March 2015.

8. A Child Responsive Program Memorandum dated 31 March 2015 was provided to the Court. That memorandum revealed that the father had had no contact with the child for the previous two and half years. It also revealed the mother’s concerns as to the father accessing child pornography. It further revealed the child’s wish to have some relationship with the father.

9. Proceedings were listed before the Court on 22 April 2015 and again the father appeared in person. Upon noting that it was proposed that Dr C be appointed as a Chapter 15 single expert, proceedings were adjourned to 28 May 2015. On 28 May 2015 the father appeared by phone and difficulties in funding a single expert report were noted by the Court.

10. Subsequently, on 31 August 2015 with the father appearing by phone, an order was made for the preparation of a family report. That family report was released to the parties and to the ICL by order made 10 May 2016.

11. On 20 July 2016, with the father attending by telephone, trial directions were made for the matter to proceed to a final hearing, allocating three days for trial. Proceedings were listed for the purpose of a compliance check with a registrar on 31 October 2016.

12. The father filed a very brief trial affidavit on 3 October 2016 together with an Amended Initiating Application seeking orders that substantially reflected the orders sought in his original application.

13. At the compliance check on 31 October 2016 the mother, who appeared unrepresented, had not filed trial documents pursuant to the trial directions. The father informed the Court via telephone link that he would be overseas until September 2017. The Registrar directed that the mother file and serve her trial affidavit by 16 February 2017.

14. On 17 February 2017 proceedings were once again before the Registrar. Neither party attended although the father was overseas. Proceedings were adjourned to 30 June 2017 on which date there was no appearance by or on behalf of either party notwithstanding both parties being notified by the ICL of the listing date.

15. Proceedings were listed for judicial case management on 14 August 2015. There was no appearance by or on behalf of the father. The mother appeared unrepresented.

16. The mother informed the Court that more recently she had facilitated face-to-face time between the father and the child under her supervision and that whilst the father was on overseas duties she was facilitating weekly electronic FaceTime communication between the child and the father. She was of the view that the child was developing a sound relationship with the father and that the child, now approaching 11 years of age, was more than capable of self-reporting any inappropriate behaviour by the father.

17. In such circumstances and in the absence of the father the mother sought an order that the father’s Initiating Application be struck out and dismissed (Rule 12.13 of the Family Law Rules 2004 (Cth)). If such an order was made, the mother would then seek leave to withdraw her Response. That would in effect end the proceedings in circumstances where the mother suggested that further intervention by the Court was not necessary. The mother’s proposed course was supported by the ICL.

18. On the mother’s oral application the father’s application was dismissed and the mother was granted leave to withdraw her Response. Orders were made accordingly.

19. The mother consented to an order that she pay her contribution to the ICL’s costs in the sum of $1,650.00 on terms and that order was made by consent.

20. Otherwise, the ICL sought an order that a similar sum be paid by the father, such sum being his lump sum contribution to the ICL’s costs.

21. The law as to costs is well settled. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.

22. 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.

23. The relevant considerations in relation to an order for costs are set out in s 117(2A).

24. 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.

25. Section 117(5) provides:

    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.

26. A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the ICL, 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.

27. 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.

28. The threshold presumption as to each party bearing their own costs has no application to the ICL, who is not a party.

29. The law is well settled that there is power under the section, subject to other statutory provision referred to below, to make orders for or against the ICL and the Court may make such order as to costs of the ICL and in such proportions in relation to each of the parties as the Court considers just: De Roma & De Roma (supra).

30. Section 117(3) provides:

    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.

31. Section 117(4) provides:

    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.

32. Neither party is in receipt of a grant of legal aid.

33. The father is currently a public servant. The mother asserts that he is in receipt of an annual income of approximately $100,000.00. He has presently been assessed to pay child support at the rate of $800.00 per month. In that circumstance he clearly has the capacity to make a contribution to the ICL’s costs on terms.

34. None of the other considerations in section 117(2A) are pertinent.

35. The ICL has been engaged in the proceedings for some time and has made a number of appearances before the Court and facilitated the issue of various subpoenas,  the production of which no doubt assisted in the preparation of the family report.

36. The father’s application has been dismissed.

37. In all of the circumstances it is appropriate that he make a similar contribution to the ICL’s costs as agreed to by and ordered as against the mother.

38. An order will be made accordingly.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 August 2017.

Associate: 

Date:  25 August 2017