Walsh and Walsh (Costs)

[2010] FamCA 153

FAMILY COURT OF AUSTRALIA

WALSH & WALSH (COSTS) [2010] FamCA 153

FAMILY LAW - COSTS - Oral application for costs against the respondent father made by the Independent Children’s Lawyer - Application for costs dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Walsh

RESPONDENT: Mr Walsh

INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke,
Legal Aid NSW

FILE NUMBER: NCC 2501 of 2008

DATE DELIVERED: 18 February 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 18 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Wilkinson

SOLICITOR FOR THE RESPONDENT: Sam Hegney Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke, Legal Aid NSW

Orders

1.The Court entertains the oral application for costs against the respondent father made by the Independent Children’s Lawyer.

2.The application for costs is dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2501  of 2008

MS WALSH

Applicant

And

MR WALSH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

1.The parenting proceedings involving the applicant mother, respondent father and the Independent Children’s Lawyer have been concluded by undefended hearing.  Proper parenting orders have been made.

2.Following the conclusion of the substantive hearing, the Independent Children’s Lawyer now makes an application for costs against the respondent father.  No application for costs is made against the applicant mother, who has failed to participate in these proceedings over several months and who did not appear at the final hearing.

3.In the absence of any specific evidence, learned counsel for the respondent father submits that he would suffer financial hardship if he was required to bear a proportion of the costs of the Independent Children’s Lawyer. The respondent father is not the recipient of a grant of legal aid, but only has part-time employment and will now be the primary carer for the child who was the subject of these proceedings.

4.The Independent Children’s Lawyer very fairly concedes the efficacy of that submission without putting the respondent father to proof.

5.By reason of that concession, the application of the Independent Children’s Lawyer against the father for a costs order is dismissed, pursuant to s 117(4)(b) of the Family Law Act, on the basis that I am satisfied that the respondent father would suffer financial hardship if he was called upon to bear a proportion of the costs of the Independent Children’s Lawyer.  The Court is mandated to take that course by the legislation in such circumstances.

6.Accordingly, I make the following orders.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  18 February 2010