Vincent & Fellows

[2021] FamCA 492

FAMILY COURT OF AUSTRALIA

Vincent & Fellows [2021] FamCA 492

File number(s):	PAC4305 of 2018
Judgment of:	HANNAM J
Date of judgment:	9 July 2021
Catchwords:	FAMILY LAW – COSTS – Where at final hearing the ICL sought an order for costs – Where ICL seeks that the parties pay costs in equal proportion – Where an order for costs would cause the father financial hardship – Where limited information regarding the financial circumstances of the mother – Where it is appropriate the mother pay a contribution to the ICL’s costs
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Penfold v Penfold (1980) 144 CLR 311
Number of paragraphs:	47
Date of last submission/s:	12 April 2021
Date of hearing:	17 March 2021
Place:	Parramatta
Solicitor for the Applicant:	John Hall Lawyers
Solicitor for the Independent Children's Lawyer:	Claremont Legal
Solicitor for the Respondent:	Self-represented
Counsel for the Applicant:	Mr Blackah
Counsel for the Independent Children's Lawyer:	Mr Fermanis

ORDERS

PAC4305 of 2018

BETWEEN:

MR VINCENT

Applicant

AND:

MS FELLOWS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	9 JULY 2021

THE COURT ORDERS THAT:

1.That within three months of the date of this Order the mother pay to Legal Aid NSW the sum of $2,000 in payment of her contribution toward the Independent Children’s Lawyer’s professional costs.

2.That the Independent Children Lawyer’s application for costs so far as it relates to the father be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

HANNAM J

INTRODUCTION

1. This judgment concerns an application for an order that the costs of the Independent Children’s Lawyer (“ICL”) be paid by the parties to parenting proceedings (“the father” and “the mother”) in which the ICL was appointed.

2. The parenting dispute between the parties was finalised in March 2021 when final orders were made with their consent providing that the father have sole parental responsibility for the parties’ only child (“the child”), that the child live with him and spend time with the mother for two hours per month at a supervised contact centre until the child reaches the age of 13.

3. In a Proposed Minute of Order tendered at the beginning of the final hearing, the ICL sought an order that the parties pay the ICL’s costs in equal amounts. This order was opposed by both parties who agreed that the matter should be determined in chambers on receipt of written submissions.

4. In written submissions it was clarified that the ICL seeks an order that the mother and father each pay the ICL’s costs in equal proportion, in the sum of $4,493.50.

5. The question for me to determine is whether there are circumstances that justify an order for the parties to pay the ICL’s costs.

   BACKGROUND

6. The parties began a relationship in January 2013 and started living together shortly before the birth of their only child, a daughter, in 2014.

7. In July 2015 the parties separated and the father moved out of the family home and began spending time with the child one weekend per fortnight.

8. In June 2016 when the child started pre-school the father assumed responsibility for collecting her at the end of the day and caring for her each evening. Overall, the parties were flexible and cooperative with the care arrangements for the child and she also spent overnight time with the father each alternate weekend as well as regular overnight time with him throughout the week.

9. In January 2018 the mother commenced a relationship with a new partner (“the mother’s new partner”) who moved in to live with the mother and child a short time later.

10. From March 2018 the parties began observing the child exhibiting oversexualised behaviours and in May 2018 the child made a disclosure that the mother’s new partner had rubbed her genitals. The father reported this disclosure to police and the matter was referred to and investigated by the Joint Investigation Response Team (“JIRT”)[1]. That team substantiated a sexual act of indecency and identified the mother’s new partner as someone who posed a risk of significant harm to the child.

    [1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigated allegations of serious child abuse at the time of this complaint.

11. In August 2018 the father informed the mother that he would not be returning the child to her care as he was concerned that the mother would not prevent the child from coming into contact with her new partner.

12. Proceedings were commenced by the father in this Court in September 2018 where the application was allocated to the Magellan Program[2]. Orders were made with the consent of the parties providing that the child live with the father and spend time with the mother one morning per week and that she be restrained from allowing the child to come into contact with her new partner.

    [2] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. 

13. In November 2018 the father filed an Application in a Case seeking that the mother’s time with the child be suspended as he contended that the mother had brought the child into contact with her new partner contrary to court orders. Orders were made with the consent of the parties that the child’s time with the mother take place at a supervised contact centre.

14. There was some delay in the progress of the proceedings as the mother did not comply with directions to ready the matter for trial. Ultimately, the proceedings were listed for final hearing in March 2021.

15. On the first day of final hearing on 17 March 2021 both parties were present though the father only had filed material in accordance with directions. An application was made by the ICL for the proceedings to be determined on an undefended basis as against the mother due to her non-compliance with trial directions. For reasons given at the time, I granted to the ICL’s application and indicated that the proceedings would be determined undefended as against the mother.

16. Following my determination that the matter would proceed undefended it became apparent that the mother agreed in principle with the orders being sought by the father and the ICL and time was given to allow them to discuss an agreed position in relation to the parenting orders if that were able to be achieved.  

17. The parties were then able to reach agreement about the child’s parenting and orders were made with their consent in accordance with this agreement.

    THE LAW & DISCUSSION

    ICL Costs

18. Applications for costs in this 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.  That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), and the Court may make an order for costs if there are circumstances that in the Court’s opinion justify such an order. Such an order for costs is as the Court considers just.

19. The High Court in the matter of Penfold v Penfold[3] 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.

    [3] (1980) 144 CLR 311

20. The Act makes specific provision in section 117 for orders as to the costs of an ICL:

    (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.

    (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.

21. The Court is conscious of the restrictions provided in section 117(4) of the Act that an order against a party in favour of an ICL must not be made 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 ICL’s costs.

22. The father submits that he cannot afford to pay the ICL’s costs. He submits that he is currently indebted to his father in the sum of $56, 486.90 for funds borrowed to pay legal costs accrued throughout the course of proceedings. He deposes to also having liabilities to the Commonwealth Bank of $44, 341, being a personal loan and credit card debt.

23. The father currently lives with his mother and several other family members in his mother’s home, for which he pays board in the amount of $200 per week. He deposes to wanting to rent his own accommodation so he can establish a family home for he and the child.

24. In anticipation of moving into his own rental accommodation the father enrolled the child in before and after school care and he is solely responsible for dropping the child off and picking her up from this service. This responsibility was incompatible with the father’s working hours and resulted in him resigning from his work, where he had been employed for three years. The father is currently unemployed and is seeking alternative employment which will offer more flexible working hours so he can fulfil his parenting responsibilities.

25. The father’s sole source of income is government benefits. He does not receive child support from the mother despite her being assessed by the Child Support Agency as being required to pay him a mere $9 per week. The father submits that he receives $712 per week in government benefits and estimates that his weekly expenditure exceeds this amount slightly each week.

26. In her written submissions the ICL summarises the father’s financial position as stated in his Financial Statement filed 16 March 2021. The ICL correctly identifies that the father relies on government benefits, is significantly indebted and that his only assets of value are his car and superannuation interests. The ICL concedes that it would not be just or reasonable for the father to sell his car as it is likely used to fulfil his role as primary carer for the child. The father’s superannuation is also conceded to be a necessary future resource.

27. Curiously, despite having made these observations the ICL does not address the question of whether an order for costs would cause the father financial hardship. The only submission made by the ICL which appears to suggest the contrary, that an order for costs would not cause the father financial hardship, is the ICL’s observation that the father has not provided any evidence of his loan arrangement with his father, to which he deposes to being required to repay at a rate of $100 per week. The ICL seems to be implying that that father has a financial resource available to him.

28. I accept the father’s submission that an order for costs would cause him financial hardship as he is not currently employed and does not have any financial resources available to him. The father is already significantly indebted and causing him to acquire any further financial liabilities may cause him to suffer financial hardship.

29. The mother did not file written submissions or an affidavit in relation to this costs application. She also neglected to file any evidence in relation to her financial position at any time during the proceedings. However, it should be noted that at the beginning of proceedings the mother was represented by legal aid. No information has been provided about that terms of the grant of legal aid but she filed a Notice of Address for Service in December 2018 indicating that she was no longer in receipt of legal aid and by June 2019 was representing herself. On the first day of final hearing the mother explained that she had represented herself and had not filed any trial documents as she could not afford legal fees.

30. In relation to the mother’s financial circumstances and in the absence of any evidence from the mother herself, the ICL highlights in written submissions that the final parenting orders made in the proceedings provide that the mother is to bear solely the costs of professional supervision once per month from now until the child attains the age of 13, a period of some six years.

31. I accept the submission of the ICL that some weight must be attached to the mother’s consent to an order that she will pay the cost of supervised contact for an extended period of time which must indicate that she has some financial resources available to her.

32. In all forgoing circumstances there is insufficient evidence for me to be satisfied that the mother would experience financial hardship as a result of having to pay a portion of the ICL’s costs.

33. 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 and balanced below, noting that there is nothing preventing any one factor being the sole determinant for an order for costs.

    The financial position of each of the parties to the proceedings

    Whether any party to the proceedings is in receipt of assistance by way of legal aid

34. The financial position of each of the parties has been dealt with earlier in these Reasons. It is my view that the father does not have the capacity to pay the ICL’s costs.

35. The mother has provided almost no information in relation to her financial position. On the basis of the information available to me I cannot make an assessment that any order for costs would cause her financial hardship. Rather, it can be assumed that the mother has some financial resource available to her. It is also noted that an order for costs does not in any way hinder the right of the mother to seek a waiver of some or all of the costs from Legal Aid NSW.

    The conduct of the parties to the proceedings in relation to the proceedings

    Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

36. The parenting proceedings to which this application for costs relate were not significantly complex, noting that there was no interim hearing and all parenting orders made throughout the proceedings were made with the consent of the parties.

37. Given that the proceedings were not significantly complex, trial directions were the only directions provided by the Court, with which only the father complied. The mother’s non-compliance with trial directions only caused one additional court event, that being a compliance check before a Registrar, and it did not delay the commencement of the final hearing.

38. There was also one other court event and associated costs brought about entirely as a result of the mother’s non-compliance with an order of the court. The father’s Application in a Case filed in November 2018 sought that the child’s time with the mother be suspended due to the mother’s non-compliance with orders made only two months previously restraining her from bringing the child into contact with her new partner. This application resulted in an additional court event in which the interim parenting orders were varied by requiring that the child’s time with the mother be supervised.

    Whether any party to the proceedings has been wholly unsuccessful in the proceedings

39. Neither party was wholly successful or unsuccessful in the parenting proceedings.

40. The father sought orders in line with the ICL’s proposal which would facilitate the child spending time with the mother at a supervised contact centre four times per year. As the final hearing proceeded on an undefended basis and the mother had not filed any documents since 2018, the mother’s proposal was unknown. However, at the final hearing it became apparent that the mother was agreeable to orders that the father hold sole parental responsibility for the child and that the child live with him. The only orders to which she did not consent were the regime of time to spend with the child.

41. After further discussions at the final hearing the final parenting orders made with the consent of the parties provided for the child’s time with the mother to occur monthly and continue to be supervised for many years into the future. This regime does not completely reflect the proposal of the father and it is unclear whether this was the mother’s desired position.

    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

42. It is the father’s submission that he made an offer in writing to the mother on 10 March 2021 to settle the proceedings on a final basis. The father provides evidence of this offer, with the terms providing that he have sole parental responsibility for the child, that the child live with him and spend time with the mother at a supervised contact centre for three hours on four occasions per year.

43. In light of the final orders made at the final hearing which facilitate the mother spending time with the child on twelve occasions per year it cannot be said that it was unreasonable of the mother to not accept the father’s offer to settle the parties’ dispute.

    CONCLUSION

44. Balancing the relevant matters that I have set out, I am satisfied that it is appropriate for the mother to pay a proportion of the ICL’s costs.

45. However, in all the circumstances including where the proceedings were not particularly complex I am of the view that the sum being sought by the ICL is excessive. In these proceedings it was readily apparent that there was a high likelihood that the hearing would proceed on an undefended basis considering the mother had not complied with trial directions and had not filed any material for some two years prior to final hearing. Conversely, if the matter had required judicial determination and proceeded on a defended basis at all times there was only one issue to be determined. In these circumstances I consider that an order that the mother pay a contribution to the ICL’s costs the sum of $2,000 as jsutified.  

46. In light of the relevant considerations and, in particular, the financial circumstances of the father, I do not consider that I would be justified in ordering that he pay any portion of the ICL’s costs.  

1. For the foregoing reasons, I make the orders set out at the forefront of the judgment.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate:

Dated:       9 July 2021