Walton and Walton (No. 2)

[2017] FamCA 1012

FAMILY COURT OF AUSTRALIA

WALTON & WALTON (NO. 2) [2017] FamCA 1012

FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer applied for the father to contribute to costs of representation of two children in an interlocutory application – Where the mother is legally aided – Where the father was unemployed and relied on his parents to fund his legal costs for the application – Where contribution to the legal costs of the Independent Children’s Lawyer would cause hardship to the father – Ordered that the oral application for costs is dismissed

Family Law Act 1975 (Cth), s 117

APPLICANT: Mr Walton

RESPONDENT:	Ms Walton
INDEPENDENT CHILDREN’S LAWYER:	Hannaway Lawyers

FILE NUMBER: NCC 2274 of 2016

DATE DELIVERED: 7 December 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 24 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Graham
SOLICITOR FOR THE APPLICANT:	Tony Cox Lawyers

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT:	Ms Grist appearing as agent for Maguire & McInerney Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Hannaway Lawyers

Orders

1. The oral application by the Independent Children’s Lawyer for costs, made 24 April 2017, is dismissed.

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 Walton & Walton (No. 2) 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: NCC2274/2016

Mr Walton

Applicant

And

Ms Walton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Independent Children’s Lawyer (“ICL”) for the father to contribute to costs of representation of interests of two children, a boy now aged almost 10 and a girl aged seven in an interlocutory application.

Brief History of Relevant Events

1. This matter was transferred from the Federal Circuit Court.

2. There was an urgent interim hearing on 18 November 2016.  Orders were made on 23 November 2016.

3. On 13 December 2016 final parenting orders were made by consent of all parties (“the 2016 consent orders”).

4. An oral application for costs was made at that time by the ICL against the father. That application was dismissed pursuant to s 117(4)(6) of the Family Law Act 1975 (Cth) (“the Act”) by his Honour Justice Austin.

5. On 3 March 2017 the father filed a fresh Initiating Application seeking to set aside the December 2016 consent orders, and for interim parenting orders.  The mother responded.  An ICL was appointed.

6. On 24 April 2017 the matter was heard and determined by me.

7. All outstanding applications were dismissed.

8. The ICL made an oral application for costs quantified in the sum of $3,960.

9. On that day [24 April 2017] the father was ordered to provide to the ICL and to the Court any material upon which he relied in relation to costs, by 8 May 2017.

10. No contribution was sought from the mother who was legally aided.

11. On 12 May 2017 the father filed an affidavit providing evidence of his financial position.

12. On 25 May 2017 the father sought and was granted leave to file an appeal out of time.

13. All documents were forwarded to the Appeals Registrar.

14. The father was to file a Draft Appeal Index by 18 July 2017.

15. That document was not filed.

16. Pursuant to Rule 22.13(2) the appeal was taken to be abandoned from close of business 18 July 2017.

17. Accordingly, all applications otherwise having been dismissed, all that remains is to determine this outstanding application for costs.

THE LAW

1. The principle established in s 117(1) of the Act is that each party to proceedings under the Act shall bear his or her costs.

2. If the Court is of the opinion that there are justifying circumstances the Court may, subject to certain subsections, make such order as to costs and security for costs as the Court considers just.

3. I consider there is a justifying factor for consideration of departure from the principle.

4. The application was made three months after the 2016 consent orders.  The triggering factor was a lapse into alcohol abuse by the mother.  She delayed collection of the children by the father.

5. The father retained the children and would not return them.  The conditions for safety in the home of the maternal grandmother were still in place.

6. I concluded that the 2016 consent orders and the interim orders made one month prior contemplated the possibility of such relapse.

7. Given the parties joint history of alcohol abuse the father must have clearly understood that.

8. The hasty recommencement of proceedings justifies consideration of contribution by the father to costs.

9. Accordingly, the factors set out in the Act must be considered.

10. The father provided evidence that he was unemployed having recently resigned from work on 6 March 2017.  That decision may have been prompted by the mother’s relapse.

11. By 12 May 2017 he had been unable to find further employment.

12. His parents funded his legal costs relating to the fresh application.

13. The father was in receipt of a Newstart allowance of $450 per fortnight and living with his parents.

CONCLUSION

1. I am satisfied that contribution to the legal costs of the ICL would cause hardship pursuant to s 117(4)(b) of the Act.

2. It is likely, given his history that the father will again find employment in New South Wales or Northern Queensland.

3. He may already have done so.

4. If so, a fresh Child Support Assessment may provide financial assistance for the physical needs of the children.

5. The application by the ICL, reasonable as it is, is therefore declined.

6. An order is made accordingly.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 7 December 2017.

Associate

Date:  7 December 2017