Vandale & Cino (No 2)
[2025] FedCFamC1F 234
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vandale & Cino (No 2) [2025] FedCFamC1F 234
File number: WOC 529 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 10 April 2025 Catchwords: FAMILY LAW – COSTS – Where the mother seeks costs against the father in a fixed sum of $200,000 and the costs of her costs application in the sum of $3,000 – Where the father seeks that each party should bear their own costs – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the father was not wholly unsuccessful in the proceedings – Where the father’s conduct during proceedings caused unnecessary costs to be incurred – Consideration of the quantum of costs – Father to pay the costs incurred by the mother, including senior counsel fees, from 9 September 2024 to date on a party/party basis – Father to pay 50 per cent of the fees of the Single Expert Psychiatrist.
FAMILY LAW – COSTS – Where the Independent Children’s Lawyer seeks an order for the parties to pay her costs – Consideration of factors under ss 117(3), 117(4) and 117(5) of the Family Law Act 1975 (Cth) – Where the parties have the financial capacity to meet a costs order but would suffer some disadvantage if forced to do so – Parties to pay the costs of the Independent Children’s Lawyer 50 per cent each – Application upheld.
Legislation: Family Law Act1975 (Cth) ss 95, 117
Family Law Rules 2004 (Cth) r 19.18 (repealed)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 6.1, Sch 3, rr 6.01, 7.06, 12.17
Cases cited: Bant v Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
De Roma v De Roma (2013) 49 Fam LR 226; [2013] FamCA 566
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Gahen & Gahen (No 2) [2013] FamCA 936
Hawkins & Roe (2012) 47 Fam LR 526; [2012] FamCAFC 77
Hitch v Hitch (2012) 47 Fam LR 603; [2012] FamCAFC 124
I and I (No 2) (1995) FLC 92-625; [1995] FamCA 80
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Prantage & Prantage(Costs) [2014] FamCA 850
Stoian & Fiening (Costs) [2014] FamCA 944
Vandale & Cino [2024] FedCFamC1F 876
Wrensted & Eades (2016) FLC 93-697; [2016] FamCAFC 46
Division: Division 1 First Instance Number of paragraphs: 66 Date of last submission: 19 February 2025 Date of hearing Determined on the papers Place: Sydney Solicitor for the Applicant: Kells the Lawyers Solicitor for the Respondent: Hennikers Solicitors Solicitor for the Independent Children’s Lawyer: Venus & Smart ORDERS
WOC 529 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VANDALE
Applicant
AND: MR CINO
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
10 APRIL 2025
THE COURT ORDERS THAT:
1.Mr Cino (“the respondent”) pay the professional costs incurred by Ms Vandale (“the applicant”) in proceedings, including the fees of senior counsel, from 9 September 2024 to the date of these orders, on a party/party basis within 28 days of those costs being agreed or assessed.
2.Within 28 days of the date of these orders, the respondent pay the applicant the sum of $4,480, being 50 per cent of the fees incurred by the Single Expert Psychiatrist in these proceedings.
3.Within 28 days of the date of these orders, the applicant and respondent are to pay the costs of the Independent Children’s Lawyer in the sum of $9,420.10 each.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vandale & Cino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
On 19 December 2024, judgment was delivered in this matter and final orders were made in respect to parenting arrangements for the child, X.[1] Amongst other ancillary orders, the final orders granted the mother, Ms Vandale, (“the mother”) sole parental responsibility for the child, changed the primary residential parent to the mother and provided that the child spend time with the father, Mr Cino, (“the father”) three nights per fortnight. Those final orders also allowed the parties to file written submissions, limited to three pages, in respect to the question of costs, within 14 days. These written reasons determine the mother’s application, which seeks an order requiring the father to pay her costs in a fixed lump sum and the application of the Independent Children’s Lawyer (“ICL”) for the mother and father to pay her costs.
[1] Vandale & Cino [2024] FedCFamC1F 876 (“Vandale & Cino”).
The mother filed her written submissions on 28 December 2024. The mother seeks an order requiring the father to pay her costs in the sum of $200,000 or “such other sum considered just by the Court” (Mother’s written submissions filed 28 December 2024, paragraph 1). She also seeks $3,000 for the costs of this costs application. The mother contends that her costs during the course of these proceedings totalled $398,640.22, comprising of senior counsel and solicitors’ fees, together with fees of the Single Expert Psychiatrist, Dr M. The mother provides supporting evidence itemising those costs.
The father failed to file written submissions in respect to costs within the timeframe provided by Order 26 of the orders made on 19 December 2024. The parties reached consent orders to extend that filing deadline to 19 February 2025 and the father complied with that deadline. The father opposes the mother’s application for costs, submitting instead that there should not be a departure from the general rule provided by s 117(1) of the Family Law Act 1975 (Cth) (“the Act”), which provides that, in the absence of circumstances justifying an order for costs, each party should bear their own costs.
The ICL filed written submissions on 6 January 2025 and seeks an order that the applicant and respondent pay her costs in the sum of $18,840.20. In seeking this order, the ICL notes that both parties were legally represented, incurred significant fees throughout proceedings, are gainfully employed and that the ICL is obliged by the Legal Aid Commission of New South Wales to seek an order for costs in matters proceeding to final hearing. In their submissions, the ICL has provided an itemisation of their costs. I will discuss the ICL’s application separately and subsequently to the mother’s costs application.
THE MOTHER’S COSTS APPLICATION
Documents relied upon by the parties
The mother’s written submissions comprises of eight pages and the following annexures:
(a)Costs Notices of the mother’s solicitor for the period 14 June 2022 to 13 September 2024;
(b)Invoices of senior counsel for the mother for services rendered in relation to the final hearing for the period 20 September 2024 to 20 December 2024;
(c)Invoices of Dr M, the Single Expert Psychiatrist, dated 20 August 2024 and 23 September 2024;
(d)Documents pertaining to the father’s proprietary interest in a property situated at Suburb OO, New South Wales;
(e)Payslip from the mother’s employer for the period 16 November 2024 to 29 November 2024;
(f)Various correspondence from the mother’s legal representatives to the father’s legal representatives and ICL with attachments;
(g)Orders of this Court;
(h)Patient update notes from the mother’s treating psychiatrist, Dr N, dated 18 June 2024;
(i)Various correspondence from the mother’s legal representatives to the mother, containing details of costs incurred in relation to her family law matter; and
(j)Mother’s proposed final orders as at 20 September 2022.
The father’s submissions comprises of seven pages and the following annexures:
(a)Financial Statement of the father filed on 19 February 2025; and
(b)Costs Notices of the father’s solicitor dated 28 March 2024, 16 September 2024 and 30 October 2024.
The Law
Section 117(1) of the Act provides that parties must bear their own costs. However, this is subject to s 117(2) of the Act, which allows the Court to make an order as to costs as it considers just, should the Court be satisfied that there are circumstances justifying such an order. In accordance with principles set out in Penfold v Penfold (1980) 144 CLR 311 at 315, the applicant bears no additional or special onus to justify an order for costs beyond satisfying one or more of the considerations set out in s 117(2A) of the Act.
In considering whether it is appropriate and just to make an order for costs in favour of a party, it is necessary to take into account and balance all relevant matters referred to in s 117(2A) of the Act.[2] However, it is unnecessary for the Court to be satisfied in respect to each and every factor set out in s 117(2A) of the Act, nor does any factor set out in s 117(2A) of the Act have priority over another.[3]
Consideration
[2] I and I (No 2) (1995) FLC 92-625 at 82,277.
[3] Prantage & Prantage(Costs) [2014] FamCA 850 at [12], citing Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at [41].
The Parties’ Financial Circumstances (s 117(2A)(a) of the Act)
The parties are both employed in healthcare. The parties’ financial positions were not comprehensively addressed, nor particularly relevant to the issues in dispute in the substantive application.
The mother is employed as a public servant on a permanent part-time basis. Currently, the mother contends her take home pay is approximately $480 per week. The mother also contends that she plans to reduce her working hours to one shift in nine to accommodate her primary care commitments for the child (Mother’s written submissions filed on 28 December 2024, paragraph 11). The father contends that the mother has mislead the Court and states she earns approximately $2,300 per fortnight.
The mother lives with her partner, Mr J, who is employed as a public servant and has no children. The mother has two other children from a previous relationship who are 12 and nine respectively and live with her in alternating weeks in a shared care arrangement with their father. The mother, her partner and her other children are currently residing at the maternal grandparent’s home temporarily until approximately mid-2025 when construction on their home in Town FF is completed.[4]
[4] Vandale & Cino at [96].
The father is a healthcare professional and works a nine-day roster. During the final hearing, the Court did not have evidence before it to confirm the father’s income. For the purpose of informing the Court of his financial circumstances, the father filed a Financial Statement and annexed that statement to his written submissions. The father deposes in the Financial Statement that his weekly income before expenses is about $2,589 per week, his weekly expenditure is about $2,454, he has approximately $401,844 in net property (including equity in a property located at Suburb OO) and approximately $300,000 in superannuation. The father deposes that he currently cares for his two older children from a previous relationship, one of whom is a teenager, and the other is an adult. He services a mortgage on his Suburb OO property. He contends that a costs order in the quantum sought by the mother would result in the sale of his Suburb OO property (Father’s written submissions filed on 19 February 2025, paragraph 20).
I accept that the making of a costs order against the father in favour of the mother and a costs order against both parents, in favour of the ICL would present a challenge to both parties. I am satisfied, however, that they each have sufficient assets to satisfy such an order.
In any event, in Cross & Beaumont (2008) 39 Fam LR 389 at [60], the Full Court held that financial incapacity to pay a costs order is not a barrier where the conduct of the party may warrant the making of such an order.
Conduct of the Parties (s 117(2A)(c) of the Act)
This sub-section is focused on the conduct of the parties as litigants,[5] rather than as separated parents generally. The mother contends that the father’s conduct during proceedings is a relevant factor.
[5] Hitch v Hitch (2012) 47 Fam LR 603.
The Parties’ Honesty During Proceedings
In my primary reasons for judgment, I found the mother to be an honest witness and, comparatively, the father to be a poor witness. At times, the father was found to be dishonest or unresponsive to questions.[6] The mother contends that the father’s dishonesty both in the lead up to trial, in making false statements to police and to the Family Report writer, and during cross-examination, is conduct that should be considered in making a costs order against the father.[7]
[6] Vandale & Cino at [140].
[7] Mother’s written submissions filed 28 December 2024, paragraphs 13–17.
Counsel for the father concedes that the father “expressed himself clumsily at times” and that adverse findings were made in relation to the father, but that the mother was also found to have exaggerated her case (Father’s written submissions filed on 19 February 2025, paragraphs 31–32).
Parties to family law proceedings are required to comply with the practice and procedure provisions of the Court in a manner that is consistent with the overarching purpose as set out in s 95(1) of the Act. The overarching purpose requires the just resolution of disputes:
(a) in a way that ensures the safety of families and children; and
(b)in relation to proceedings under this Act in which the best interests of a child are the paramount consideration–in a way that promotes the best interests of the child; and
(c) according to law; and
(d) as quickly, inexpensively and efficiently as possible.
One of the most significant practice and procedure provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) is the obligation of disclosure set out in Pt 6.1, r 6.01(1), which states:
Subject to subrule (4), each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.
(Emphasis added)
In considering the mother’s application for costs, I have considered it relevant that in my judgment I found that the father gave deliberately false evidence that went beyond a poor recollection or a different perception of events in denying that he filmed the mother by video at a supermarket on 1 May 2022. Initially, the father denied taking any photos or videos, but after being shown a photograph he had sent to the mother, he recanted his denial.[8] Additionally, despite being shown a text message in which he stated that he had also been filming the mother on that occasion, the father maintained his denial that he had done so.[9]
[8] Vandale & Cino at [142].
[9] Vandale & Cino at [143].
I have further considered it relevant that the father was not truthful in respect to being cross-examined about an occasion when he locked the mother and her eldest daughters out of the house in September 2021. In that respect, the father admitted the mother was locked out of the house but denied that he had forcibly removed the mother or that he locked the mother’s daughters out of the house. I found the account the father gave in that respect implausible, and that the mother’s account was corroborated by supporting text messages.[10]
[10] Vandale & Cino at [151]–[155].
Coercive Control
The mother states that the father’s lack of insight throughout the proceedings, specifically regarding his coercive and controlling conduct directed at the mother, is a factor that the Court should consider. In my primary reasons for judgment, I found the father to have perpetrated coercive and controlling conduct against the mother in the form of actual physical violence, [11] making false statements to authorities including to law enforcement,[12] withholding contact with X,[13] and forcing the mother to walk home on multiple occasions.[14] Paragraph 18 of the mother’s written submissions state:
It is not the case that the mother seeks to have the father “punished” or be exposed to some sort of double jeopardy by asserting that family violence is relevance [sic] as to costs. Rather, the father’s lack of insight into his own behaviours and how they failed to align with his application for sole parental responsibility and primary care was significant. It was his failure to properly frame his case and promulgate orders which were supported by the evidence which makes his behaviours relevant.
[11] Vandale & Cino at [144].
[12] Vandale & Cino at [162].
[13] Vandale & Cino at [179].
[14] Vandale & Cino at [175].
In this regard, it is submitted by the mother that the father sought orders for joint parental responsibility and primary care of the child despite admitting to physical acts of violence during cross-examination and making false statements to police and the Family Report writer in respect to the mother’s mental health.
The father’s submissions acknowledge that the substantive judgment found that the father had committed family violence and coercive controlling behaviours and that he does not cavil with those findings. The father submits that “those findings go principally to the orders made rather than the question of costs” (Father’s written submissions filed 19 February 2025, paragraph 35). I accept the father’s argument in that respect.
Father’s Conduct in Respect to the Mother’s Mental Health
The mother’s mental health was an issue in dispute in proceedings. The father was in receipt of evidence from the mother’s treating psychiatrist, Dr N and treating psychologist, Ms HH, as to the mother’s mental health for more than two years prior to the trial.
On 21 June 2024, the mother enclosed a new report from Dr N confirming the mother’s good health and proposed the father pay for a further report from a Single Expert Psychiatrist, Dr M, if he continued to dispute Dr N’s view as to her state of health. The father did not reply until 6 August 2024, advising he did not consent to an independent court expert being appointed. The parties eventually reached agreement that the mother would pay for the report and court appearance of Dr M, which was in the amount of $9,680.[15]
[15] Mother’s written submissions dated 28 December 2024, paragraph 4c and Annexure “E”.
The mother submits that the father’s conduct in refusing to disclose his position on whether he accepted Dr N and Ms HH’s evidence, his refusal to facilitate a timely appointment of Dr M and to fund that appointment, was inconsistent with the overarching purpose.
The father submits that the evidence supported that the mother had mental health challenges before and during their relationship, and in the post-separation period. The father contends that Dr M’s evidence in respect to the mother’s mental health cautioned against recurrence and Ms HH’s evidence was “at best ambiguous”.[16] The father contends that the mother’s mental health was an issue that needed to be considered especially in light of the mother exaggerating parts of her case, which was a finding made in the substantive judgment.[17]
[16] Father’s written submissions filed 19 February 2025, paragraph 30.
[17] Vandale & Cino at [135].
As earlier noted, relevant to the consideration of this matter is that by June 2022 the father was in receipt of reports from the mother’s mental health treaters, a psychologist and a psychiatrist respectively, confirming that the mother had no mental health diagnosis other than some anxiety symptoms and chronic pain, which did not adversely impact upon her parenting capacity.[18] In those circumstances, I find the father’s submissions unconvincing. Moreover, the father was presented with additional evidence beyond those two reports, in the form of a further psychiatric evaluation by the Single Expert, Dr M, which was released to the parties prior to trial. Dr M’s report, again, confirmed that the mother did not suffer from a mental health diagnosis that impacted her parenting capacity.[19] Whilst I accept that Dr M did cite a potential risk for recurrence of the mother’s previous mental health issues, based on stress or trauma related triggers, it did not justify the father’s position in seeking a reduction in the child’s time with the mother. In that respect, Dr M noted that the mother had a proven capacity to comply with mental health treatment and was currently making proactive efforts to manage her mental health.
[18] Vandale & Cino at [166].
[19] Vandale & Cino at [207]; See also Single Expert Report by Dr M dated 4 September 2024, paragraph 168.
In his written submissions the father submitted that “the [m]other had a history of mental health issues which pre-dated her relationship with the [f]ather and which required, for the success of her application, satisfying the Court as to the stability of her mental health” (Father’s written submissions filed 19 February 2025, paragraph 30). Aside from the father’s lay opinion, the father failed to provide any expert evidence that the mother’s mental health was anything other than stable.
In that context, the conduct of the father that I have found to be relevant to s 117(2A)(c) of the Act, is that, despite being in possession of the reports of the mother’s treating mental health professionals, whose opinions were supported by the Single Expert Psychiatrist, he continued to press the mother’s mental health as an issue in dispute at the final hearing. At the commencement of the hearing, the father proposed that the mother should have two nights per fortnight or four nights per month with the child. This was a reduction in time from the interim orders in effect at the commencement of the final hearing, which provided that the child spend time with the mother three nights in each nine-night cycle with time starting at 9.30 am on the first day and ending at 5.00 pm on the fourth day. Converted to a monthly cycle, this meant that the child was already spending approximately 9 nights and 12 days with the mother.
In light of the evidence from the mother’s mental health professionals and the Single Expert, the father’s position was unreasonable. I accept that the father moderated his position during the trial, however, his initial unreasonable position precluded the possibility of the matter being settled and destined the parties to run their respective cases in Court. I have regarded the father’s unreasonable position in respect to the orders he pressed at the commencement of the hearing to be highly relevant to my order for costs in favour of the mother.
Wholly Unsuccessful (s 117(2A)(e) of the Act)
The term “wholly unsuccessful” relates to a situation in which there is an application that is heard and determined, and the applicant is wholly unsuccessful (Bant v Clayton (Costs) (2016) 56 Fam LR 31 at [22]).
On the final day of the final hearing, the parties were able to narrow the orders that were disputed. A range of ancillary orders in respect to communication, education, Christmas arrangements, non-denigration, changeover, medical care and dispute resolution were not in dispute. The parties were also able to reach agreement in respect to certain matters prior to trial including arrangements for the Christmas 2024 to 2025 period, Easter and some special occasion time.
The primary orders in dispute were parental responsibility, the child’s primary residence and time arrangements for the non-residential parent. The father’s proposed orders in relation to these matters were unsuccessful. The mother’s proposed orders in respect to these matters were largely successful, although not adopted by the Court in their entirety. The mother was granted sole parental responsibility to a smaller range of matters than what was sought in her proposed orders and the father was also provided with one more night per fortnight with the child before she commences school than proposed by the mother at the final hearing.
The mother contends that the father was wholly unsuccessful, referencing parental responsibility and primary residential care arrangements, stating: “[t]he only areas where he was successful were the consent orders agreed to by the parties, which dealt with relatively minor matters such as special occasions, injunctions, authorities and changeover” (Mother’s written submissions filed on 28 December 2024, paragraph 25).
The father contends that he was not wholly unsuccessful, noting that whilst the orders for spending time with the child was not the outcome he hoped for, the hearing explored the best interest of the child and matters of concern that were properly before the Court including the mother’s mental health, the outcomes for the child under the care of the father and the paternal grandmother and the recommendations of the Family Report writer. In agreeing to some orders of an ancillary nature that were proposed by the father and not opposing other orders also proposed by the father, senior counsel for the mother acted entirely appropriately and in a manner that was consistent with the overarching purpose to which I have referred.
I accept, however, that it cannot be said that the father was wholly unsuccessful in the proceedings. However, the mother’s success in respect to the substantiative matters that required the Court’s adjudication is a matter that I have considered pursuant to s 117(2A)(g) of the Act.
Offers of Settlement (s 117(2A)(f) of the Act)
Both parties contend they made attempts at settlement throughout proceedings. The mother submits that the father rejected several offers of settlement including the following:
·In April 2022, the mother, through her lawyers, wrote to the father seeking the return of the child and an agreement to mediate.
·On 16 June 2022, the mother’s solicitors wrote to the father’s solicitors proposing interim orders for the child to live with her and spend time with the father for two nights and an extra day in every nine-night cycle. The mother submitted that this offer was slightly more time than what the father achieved at the final hearing (Mother’s written submissions filed 28 December 2024, paragraph 27).
·On 22 June 2022, the mother provided further material from her treating practitioners to the father and proposed interim orders again offering the father two overnights and one day in each nine-day cycle.
·On 20 September 2022, the mother made an offer of settlement by letter to the father’s solicitors, proposing equal shared parental responsibility, as it then was, and a week-about arrangement for the child. This offer included detailed proposed orders for special occasions, changeovers and injunctions.
·On 6 October 2022, the mother proposed by letter to the father that the child live with her for four nights in the first nine-night cycle and five nights in the next nine-night cycle, with the parties to attend mediation after six months to move to a shared care position.
The father submits that offers of settlement have limited utility in cost applications concerning parenting disputes due to the overriding obligation to promote outcomes that are in the best interests of the child (Father’s written submissions filed 19 February 2025, paragraph 15). The father’s written submissions do not reference any offers of settlement made by letter by him to the mother. Instead, the father’s submissions detail different proposed orders in his Response documents and proposals voiced during the father’s interview with the Child Impact Report writer.
In Hawkins v Roe (2012) 47 Fam LR 526, the majority (May and Ainslie-Wallace JJ) said at [147]:
While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.
However, in Wrensted & Eades (2016) FLC 93-697 (“Wrensted & Eades”), the Full Court (Bryant CJ, Finn and Strickland JJ) expressed some concern with that analysis if it was to be construed as establishing extra-legislative guidelines or criteria for the making of a costs order in parenting cases. In that respect, the Full Court said at [103]:
… However if the majority in Hawkins & Rowe, by the use of the words “the occasions on which such an order should be made in a parenting dispute should have some particular features”, were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion (Nguyen v Nguyen 169 CLR 245 at 268–270; Gett & Tabet (2009) ALR 504 at [261]–[301] especially at [294]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 per Heydon J at [84] and [85]; F Firm & Ruane and Ors (2014) FLC 93-611) at [163].
I respectfully agree with the reasoning of the Full Court in Wrensted & Eades in finding that there is no distinction in the legislative considerations that the Court is required to have regard to in respect to an application for costs in parenting proceedings, as opposed to property proceedings.
I accept the father’s submission that, at the time of the mother’s various offers of settlement, the evidence had not fully crystallised in respect to the state of the mother’s mental health and whether her parenting capacity had been adversely impacted by mental health considerations. That was not the case, however, after the father’s legal representatives were in possession of the Single Expert Report of Dr M on 9 September 2024 and the father was made aware of its contents.
As earlier stated, it was unreasonable for the father to continue to press for orders seeking a reduction in the child’s time with the mother after the release of that report. This is a matter that I have also considered to be relevant in terms of ss 117(2A)(c) and 117(2A)(g) of the Act.
Summary of Considerations in Respect to the Mother’s Application for Costs
For reasons which I have earlier set out, I find that the mother has consistently demonstrated a preparedness to resolve matters in dispute (Mother’s written submissions filed on 28 December 2024, paragraphs 26–30). In the context of that background, it was unreasonable for the father to press for orders seeking a reduction in the child’s time after the release of Dr M’s report.
Accordingly, I will order the father to pay the costs of the mother in respect to professional legal services provided to the mother both in and in connection with her application for parenting orders after 9 September 2024, which was the date Dr M’s report was released. Those costs should be paid on a party/party basis and will include the costs of senior counsel in circumstances where the issues at stake for the parties and the child were of the utmost significance and where the evidentiary considerations justified engaging the services of senior counsel. The order will require the father to pay the mother’s costs up to the date of these orders in respect to her application for costs in circumstances where the father has been unsuccessful in his opposition to that application.
To avoid doubt, the father should also pay 50 per cent of the cost of Dr M’s total fees for his Single Expert Report and attendance at Court in accordance with r 7.06(1) of the Rules.
Quantum of Costs
Rule 12.17 of the Rules sets out the methods of calculating costs. These include the Court fixing a specific amount for costs (r 12.17(1)(a)) or an order for the costs to be assessed on a particular basis (r 12.17(1)(b)).
In Stoian & Fiening (Costs) [2014] FamCA 944 (“Stoian & Fiening”) at [91], Kent J endorsed the principles for applying a rule equivalent to r 12.17 of the Rules when referring to r 19.18(1)(a) of the now repealed Family Law Rules 2004 (Cth) as adumbrated by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [9]. Those principles include:
i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation;
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable;
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available;
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place;
v.the gross sum “can only be fixed broadly having regard to the information before the Court”;
vi.nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter;
vii.in terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No. 2) (1995) 57 FCR 119, put the matter as follows, at [16]:
‘On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary “fail safe” discount on the cost estimates submitted to the Court: Leary v Leary at 265 …
(Citations omitted)
Consistent with those principles, it has been determined that where a Court orders a party to pay costs, it may be appropriate for the Court to fix a lump sum. By doing so, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill (Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51]).
The difficulty in awarding costs in a fixed sum amount in this case is that the mother’s costs have been quantified on an indemnity basis, or at least at an hourly rate that significantly exceeds that which is provided for in Sch 3 of the Rules. In those circumstances, it is not possible to determine what is a logical, fair and reasonable fixed sum amount for costs as assessed on a party/party basis.
The orders in this matter will therefore be for the father to pay the mother for the costs of and incidental to her application filed on 17 May 2022, including senior counsel fees, in respect to the period subsequent to 9 September 2024 to the date of these orders, which will include the costs of the mother’s costs application.
As earlier noted, the father is also required to pay 50 per cent of the costs of the Single Expert, with his share being $4,840.
THE ICL’S APPLICATION
The ICL seeks costs in the sum of $18,840.20. The ICL included an updated Schedule of Costs in their written submissions, reflecting their updated fees considering counsel’s non-attendance on the final day of the hearing.
The mother opposes the ICL’s application for costs. The mother submits that whilst she is gainfully employed, her financial position is limited due to her significant expenditure on legal fees, care of dependents and intention to reduce her working hours. Moreover, the mother submits that the ICL’s submissions with respect to parental responsibility and allocation of time were unsuccessful and, as earlier noted, the mother made significant attempts to settle proceedings in September 2022. The mother contends, had the father accepted those offers, the ICL’s costs would have been minimal given she was only appointed a short time prior to the September 2022 settlement discussions (Mother’s written submissions filed 28 December 2024, paragraph 32).
The father does not acknowledge or make submissions in respect to the ICL’s costs application.
The Law
The costs of an ICL are governed by different provisions to the costs of parties, namely ss 117(3)–4 and s117(5) of the Act. Those provisions are set out below:
Costs of independent children’s lawyer
(3) 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.
(4) 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.
…
Funding of independent children’s lawyer not to affect costs order
(5) 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.
Consideration
In considering the application by the ICL, I note that the parties do not fall into s 117(4)(a) of the Act as they funded their legal representation privately.
I have already set out the financial circumstances of the parties.
The main consideration that I have had regard to in determining that the parties should pay the costs of the ICL is s 117(2A)(g) of the Act. In terms of that provision, it is relevant that the role played by the ICL in parenting proceedings, including in this matter, is invaluable. The role of the ICL was summarised in the context of an application for costs in proceedings before the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172. Specifically, at [11], Kirby J said:
… The children’s representative has a duty to “act in an independent and unfettered way in the best interests of the child”. This duty carries over to an appeal. The interests of the children and their welfare is of concern to the public. Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this Court.
(Footnote omitted)
I accept that it is in the public interest for the best interests of the children to be represented in proceedings before this Court and that the Court invariably receives substantial assistance from ICLs appointed in parenting proceedings. Such assistance was provided by the ICL in this case.
Although the ICL’s proposed final orders on parental responsibility and time arrangements were not adopted, I accept that the ICL still provided insights to the Court, which helped illuminate the best path to uphold the child’s best interests. The ICL provided insights including but not limited to the parties’ high conflict relationship,[20] the father’s tendency to leave the child in the care of others,[21] the importance of the relationships that the child shares with the mother’s eldest daughters who are closer in age to the child,[22] and the resilience of the child.[23] In respect to the Court making appropriate orders, the ICL provided assistance by encouraging the parents’ cooperation in respect to ancillary orders on the final day of the hearing,[24] and by drafting certain proposed orders, which were ultimately made by the Court.[25]
[20] Vandale & Cino at [123].
[21] Vandale & Cino at [126].
[22] Vandale & Cino at [260].
[23] Vandale & Cino at [128].
[24] Vandale & Cino at [308].
[25] Vandale & Cino at [310].
The mother concedes in her written submissions for costs that the ICL was of some assistance to the parties prior to the final hearing, providing an example of the ICL ensuring that appropriate evidence was before the Court to determine the issues in dispute, stating that the father resiled from his initial refusal to appoint a Single Expert to assess the mother’s mental health “after some intervention from the ICL”.
For these reasons, and noting that – where possible – the Court should aim to protect the public purse, the Court is generally inclined to order litigants to contribute to the ICL’s costs (Gahen & Gahen (No 2) [2013] FamCA 936 at [10], citing De Roma v De Roma (2013) 49 Fam LR 226 at [2]–[3], [39]–[52] and [54]).
Having regard to the principles adumbrated by Kent J in Stoian & Fiening to which I have earlier referred, I am satisfied that the costs figure sought by the ICL is logical, fair and reasonable. I will, therefore, make an order for the parties to each pay half of the costs of the ICL which, being a total sum of $18,840.20, results in each party being required to pay $9,420.10. I order those fees to be paid within 28 days.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 10 April 2025
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