Tubman and Tubman

[2014] FamCA 1048

FAMILY COURT OF AUSTRALIA

TUBMAN & TUBMAN [2014] FamCA 1048

FAMILY LAW – COSTS – where final orders made by consent – matter settled after three hearing days – where orders were largely identical to father’s application –Independent Children’s lawyer sought costs against father

Family Law Act 1975 (Cth) s 117

PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Tubman

RESPONDENT: Ms Tubman

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: PAC 410 of 2013

DATE DELIVERED: 25 November 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 3 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Morley

SOLICITOR FOR THE APPLICANT: Claremont Legal

COUNSEL FOR THE RESPONDENT: Ms Hamilton

SOLICITOR FOR THE RESPONDENT: Glen R Walters & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ladopoulos

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

Orders

1. The Independent Children’s Lawyer’s application for costs against the father is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tubman & Tubman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 410 of 2013

Mr Tubman

Applicant

And

Ms Tubman

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 3 September 2014 I dismissed an application made by the Independent Children’s Lawyer for that parties’ costs to be paid by the father in these proceedings. I indicated that I would publish my Reasons for that decision in due course. These are my reasons.

Background

1. After three days of a parenting matter relating to their two children, the parties resolved their dispute and sought that final orders be made by consent. Agreement was reached prior to hearing the evidence of the family consultant, who was the final witness. The parties consented to orders largely identical to those sought by the father in the proceedings. I was satisfied that those orders were in the best interests of the children and accordingly final orders were made by consent in these terms.

2. The parties, Mr Tubman (“the father”) and Ms Tubman (“the mother”) are both 34 and commenced a relationship sometime between 2001 and 2003. They lived together for some years prior to marrying in 2006. They have two children of their marriage, B who was born in 2007 and C who was born in March 2010.

3. The parents were both involved in the care of the children when they lived at their first home in D Town. However the family suffered financial hardship and as a result the father moved to the E Town area in about December 2010 to commence an apprenticeship. He lived with his parents during this time and would travel to D Town on the weekends. The mother and children also relocated to the E Town area in January or February 2011. From this time the family lived together in a rented house.

4. In May 2012 the mother began to work casually doing an overnight shift. She continued this occupation until October 2012 when she began working casually at nights at a supermarket.

5. The mother says that on 8 November 2012 C told her certain things that caused her to be concerned that C may have been sexually harmed by the father. After receiving some advice from a sexual assault service the mother arranged for the children to stay with her sister for the next couple of days. The mother confronted the father with the allegations of sexual harm on Saturday 10 November 2012, which caused the father to leave the house and stay at his parent’s home as he was concerned about being accused of trying to influence C if he were to remain there. The father has at all times denied that he has been in any way sexually abusive or improper and was extremely distressed by the allegations.

6. The sexual abuse allegations were investigated by police and JIRT (a joint police and Community Services investigation team specialising in child sexual assault) but as C made no disclosure the investigation was taken no further.

7. Concerns about an unacceptable risk of harm to the children should they spend time with the father unsupervised were central to the mother’s position at the hearing.

8. The orders sought by the father, in summary, were that the parties have equal shared parental responsibility of the two children, that the children live with the mother and spend unsupervised time with him on alternate weekends from after school on a Friday and for half of the school holidays.

9. The orders sought in response by the mother, in summary, were that the mother have sole parental responsibility for the two children and that the children live with her and spend only supervised time with the father. The mother sought supervised time each alternate weekend from 9am Saturday to 5pm Sunday, to be supervised by the father’s brother or his sister-in-law.

10. The final orders made with the consent of the parties , provide for equal shared parental responsibility of the children, that the children live with the mother and spend unsupervised overnight time with the father. The time to be spent with the father is to gradually increase as the children become older and the youngest child commences school. Initially the children will spend time with their father on alternate weekends from 9 am Saturday to 5pm Sunday, and progress to after school on Friday to 5pm Sunday, when C commences school in 2015. The first three months only of the overnight time the children are to spend with the father is to occur at the paternal grandparent’s home.

Submissions

1. The Independent Children’s lawyer seeks a costs order against the father, for half of her costs, being $5 558.25.

2. It was argued on behalf of the father that an order as to costs against the father should not be made largely due to the father’s financial circumstances and that he was not wholly unsuccessful in his case.

The law to be applied & Discussion

1. Applications for costs in the Family Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her own costs. However, as the Independent Children’s Lawyer is not a party to the proceedings that rule does not bind the Independent Children’s Lawyer. Further, a trial Judge has discretion under s 117(2) to make an order for costs if there are circumstances which justify it in doing so.

2. The High Court in Penfold v Penfold[1] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [1] (1980) 144 CLR 311

3. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.The relevant matters will be considered, though there is nothing preventing any one factor being the sole determinant for an order for costs.[2]

   [2] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.

4. As this is an application for the payment of costs of the Independent Children’s Lawyer, the restrictions provided in section 117(4) apply so that the Court must not make an order against a party in favour of an Independent Children’s Lawyer if the party has received legal aid in the proceedings, or if the Court considers the party “would suffer financial hardship” as a result of an order to bear a proportion of the independent children’s lawyer’s costs.

5. The mother in these proceedings has been legally aided and thus a costs order cannot be made against her. The Independent Children’s Lawyer therefore only seeks a costs order against the father.

6. As to the section 117(2A) considerations, the father earns $800 per week and pays rent of $460 per week. The balance of his money is used to cover necessary expenses such as food, electricity and car expenses. The father also has a $30 000 debt which he has been repaying and has legal expenses related to the proceedings. In my view the father does have some capacity to pay the costs order.

7. As noted, the mother is in receipt of a legal aid grant. Although the father privately funded his proceedings he is not in a particularly comfortable financial position.

8. Although in my view neither party conducted their proceedings improperly, I do have some reservations about the reasonableness of the mother’s position and, in my view, this is not a matter which should have resolved itself after three days hearing. The orders which were consented to not only were appropriate and in the children’s best interests but also amounted to a considerable compromise by the father. There was uncontradicted evidence that the mother had unilaterally relocated the children to the central coast with a new partner and although the father wishes to spend more time with the children, he was not in a position to move. There was also, in my view, insufficient evidence to support the mother’s contention that there was an unacceptable risk of harm to the children, should they spend unsupervised time with the father, and it was unrealistic to consider that the Court would make such an order on an indefinite basis. Further, the father’s position did not change in the proceedings, nor did he make any significant concessions during cross-examination.

9. The final orders as made by consent are largely identical to those sought by the father. Thus, it cannot be said that he was wholly unsuccessful in the proceedings. The mother was largely unsuccessful in the proceedings as she agreed to the central contentious order, that the father have unsupervised time with the children.

10. For these reasons, I am of the view that this is a matter which should have been resolved by consent without proceeding to trial. The orders the father sought and that were ultimately made, provide for the children to spend time with him that is less than he may have sought but he was faced with circumstances where the mother had unilaterally relocated some distance away. The father did not seek orders which may have required the mother to change her residence again, but only unsupervised time with the children on alternate weekends and half of the school holidays. It was not in my view reasonable for the mother to seek that that the father’s time be supervised. The parties are in a reasonably similar financial position but the mother only received legal aid. The costs are sought against the father who is more akin to the successful party in that orders made in virtually identical terms to those he sought. In these circumstances I am satisfied that an order requiring the payment of the Independent Children’s Lawyer’s costs is not justified.

11. Accordingly the application for costs is dismissed.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 November 2014.

Legal Associate: 

Date:  25 November 2014