Tory and Tory

[2008] FamCA 221

FAMILY COURT OF AUSTRALIA

TORY & TORY [2008] FamCA 221

FAMILY LAW – COSTS – Relevant matters in relation to the position of the Independent Children’s Lawyer

Family Law Act 1975 (Cth) s 117(1), (2) and (2A)

APPLICANT: Mrs Tory

RESPONDENT: Mr Tory

FILE NUMBER: SYF 5031 of 2000

DATE DELIVERED: 7 April 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Rose

HEARING DATE: 7 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: E. Boyle

SOLICITOR FOR THE APPLICANT: Reid Family Lawyers

COUNSEL FOR THE RESPONDENT: D. Hauseman

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

G. Moore

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Adamson Solicitors

Orders

1. That the application for costs made by the Independent Children’s Lawyer is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 5031 of 2000

Mrs Tory

Applicant

And

Mr Tory

Respondent

REASONS FOR JUDGMENT

Introduction

1. An oral application is made by the Independent Children’s Lawyer for an order for costs against the parties on the basis that they meet the costs incurred by the Independent Children’s Lawyer in the sum of $2,140.00.

1. The general principle in relation to costs in this Court is dictated by Section 117(1) which is that each party bears his or her own legal costs.  However, that is subject to a circumstance being found which may make an order for costs just or proper, and if such a circumstance is found then pursuant to Section 117(2A) I am required to consider various relevant matters for the purpose of exercising the discretionary power to make an order for costs.

1. In my view there is a circumstance which may justify an order for costs.  That circumstance is that the Independent Children’s Lawyer acts in the public interest by providing an independent role and voice for children who are the subject of parenting proceedings, and it is implicit in this particular matter that that role has been performed to a substantial degree. 

1. In terms of relevant matters pursuant to Section 117(2A), counsel for the Independent Children’s Lawyer did not draw my attention to any particular matters other than costs that have been borne by each of the parties.  So far as the father is concerned he has paid $4,500.00 for expense incurred in the preparation by Dr W of a single expert’s report.  The parties have also met costs incurred in the preparation of the family report by Ms C, psychologist.  I can infer that those costs were significant having regard to the content and length of each of those reports.

1. My attention was not drawn to whether or not the parties are in receipt of legal aid.

1. There is very little evidence on which I can make any finding as to the parties’ financial circumstances, let alone whether they are at such a degree that they have the capacity to pay the costs that have been sought.

1. Counsel for the Independent Children’s Lawyer did not seek to make any further submission.

1. Having regard to the costs that have already been incurred by the parties and the absence of evidence of any real substance as to the parties’ respective financial circumstances, I propose to dismiss the application for costs.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  8 April 2008