Towns and Towns (No 2)

[2019] FamCA 887

FAMILY COURT OF AUSTRALIA

TOWNS & TOWNS (NO. 2) [2019] FamCA 887

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer filed an application for contribution to costs by both parties – Where the mother made an initial contribution of $1,650 in July 2017 – Where the mother has sole financial responsibility for the parties’ two children – Where an order would cause the mother financial hardship and create adverse consequences for the children – Where the father’s initial contribution remains unpaid – Where the father has not provided financial disclosure – Where the Court received a Notification of Bankruptcy in relation to the father – Where the father incurred no legal expenses and pays no child support – Where the application in relation to the mother is declined – Ordered father to pay a contribution to costs of the Independent Children’s Lawyer.

Family Law Act 1975 (Cth), s 117
APPLICANT:	Ms Towns

RESPONDENT: Mr Towns

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1371 of 2017

DATE DELIVERED: 26 November 2019

PLACE DELIVERED: In Chambers

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 18 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mullane & Lindsay

COUNSEL FOR THE RESPONDENT: Not Applicable

THE RESPONDENT: Representing himself

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That the Respondent father Mr Towns pay to Legal Aid NSW within 28 days the sum of $4,216 as his contribution to the costs of the Independent Children’s Lawyer incurred in the representation of the subject children in November 2018 and February 2019.

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 Towns & Towns 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 NEWCASTLE

FILE NUMBER: NCC 1371 of 2017

Ms Towns

Applicant

And

Mr Towns

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. On 18 September 2019 parenting orders were made after a trial conducted in November 2018 and February 2019.

2. After orders and reasons were delivered in September 2019 the Independent Children’s Lawyer (“ICL”) made an application for contribution by the parties to costs of representation. The relevant amount is $4,216.00 each.

3. On 18 September 2019 an order was made directing the parties to file and serve any financial material upon which they wished to rely within 28 days.

The Mother

1. On 11 October 2019 the mother filed an affidavit giving evidence of her financial circumstances.[1]

   [1] Affidavit of the mother filed 11/10/2019

2. The position of the mother is affected by the following matters:

   ·She has, and is likely to continue to have sole financial responsibility for the parties two children aged 10 and eight;

   ·From her income as an educator and a Family Tax Benefit the mother pays mortgage instalments, school fees, and repayments to a personal loan incurred for legal fees in these proceedings;

   ·The balance of about $500 per week is applied to rates and outgoings, the running and maintenance of a car and all of the household and personal needs of herself and the children.

3. The mother made an initial contribution of $1,650 in July 2017.

4. I am satisfied that in those circumstances the imposition of a further costs order would cause the mother financial hardship.

5. It would create adverse consequences for the children.

6. The application in respect of the mother is declined.

The father

1. The father did not provide any financial information directly.

2. However, a Notification of Bankruptcy – Debtors Petition was sent to this Court by the Australian Financial Security Authority. It was received on 28 October 2019. The notice was sent because the Family Court is disclosed as a creditor of the father. Court filing fees unpaid of $1,667 are the relevant debt.

3. The total debt to creditors disclosed in the petition is $59,294.

4. The only other information before the Court is that the father was a business manager in Sydney until February 2019 when he moved to Melbourne to take up work in M Company.

5. The father had no legal expenses at trial. He chose to participate representing himself although not fully participating.

6. The ICL representing the children’s interests, and the mother through her lawyers, effectively conducted the trial.

7. The father does not pay child support and has declared he will not do so in future.

8. The father has not disclosed his current income.

Conclusion

1. In those circumstances it is appropriate to make the order sought by the ICL. I do so based on an assumption that the initial contribution of $1,650 sought from the father remains unpaid.

2. An order for the payment of $4,216 is made accordingly.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 26 November 2019.

Associate:

Date:  26 November 2019