Watts and Watts

[2016] FamCA 616

FAMILY COURT OF AUSTRALIA

WATTS & WATTS [2016] FamCA 616

FAMILY LAW – COSTS – Application for costs order by Independent Children’s Lawyer – Discussion of general principles – Where mother in receipt of legal aid – Where father in full time employment – Where no submission by father as to hardship – Where order made for father to pay one half of Independent Children’s Lawyer’s costs.

Family Law Act 1975 (Cth) s 117

De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936

APPLICANT: Ms Watts

RESPONDENT: Mr Watts

INDEPENDENT CHILDREN’S LAWYER: Ms Truong

FILE NUMBER: SYC 5605 of 2009

DATE DELIVERED: 29 July 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 23 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mahony Family Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown Family Law

Orders

1. That the Respondent Father pay the Independent Children’s Lawyer’s costs in the sum of $3486 to Legal Aid NSW within one month from this date.

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 Watts & Watts 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 PARRAMATTA

FILE NUMBER: SYC 5605 of 2009

Ms Watts

Applicant

And

Mr Watts

Respondent

REASONS FOR JUDGMENT

1. The primary issue in these proceedings related to parenting arrangements for the two children of the parties’ relationship who at the time of final orders were aged 13 and 9.

2. Final orders were made by consent on 23 May 2016.

3. The Independent Children’s Lawyer (“ICL”) made an application for her costs. It was ordered that the ICL file and serve written submissions by 17 June 2016 and the father file and serve any submissions in reply by 8 July 2016.

4. No submissions have been received from the father.

5. The ICL has had a significant engagement in the proceedings since being appointed in April 2014.

6. The ICL seeks an order that the father pay his half of the ICL’s assessment of costs of $6,937 being $3,486.97. The mother was legally aided in the proceedings and the ICL is precluded from seeking an order for costs against her: s 117(4)(a).

7. Section 117 of the Family Law Act 1975 (Cth) provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs. Such threshold presumption as to each party bearing their own costs has no application to the ICL who is not a party.

8. Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.

9. The law is well settled that there is power under the section, subject to other statutory provisions referred to below, to make orders for or against the ICL and the Court may make such order as to costs of the ICL and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma [2013] FamCA 566).

10. Section 117(3) provides:

    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.

11. Section 117(4) provides:

    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.

12. Section 117(5) provides:

    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. (emphasis added)

13. A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the ICL, because that terminology is susceptible to ambiguity. As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936 at [8], it could conceivably mean either:

    (a)The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or

    (b)The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.

14. In De Roma & De Roma (supra) Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.

15. The relevant considerations in relation to an order for costs are set out in s 117(2A). They are appropriate to consider in the context of the ICL’s application.

16. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:

    a)The financial circumstances of each of the parties to the proceedings;

    b)Whether any party has legal aid and the terms of any grant of aid;

    c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;

    d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

    e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    f)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; and

    g)Such other matters as the Court considers relevant.

17. The father is in full time employment and not legally aided.

18. He has made no submission that an order for costs would cause him hardship.

19. The ICL has had significant involvement in the proceedings including but not limited to various appearances, issuing and inspecting subpoena, liaising with the children’s school, contact centre, counsellor and therapist. The ICL facilitated mediation and ongoing discussions culminating in the matter being resolved by consent. The ICL’s costs included fees actually paid to counsel, service and conduct monies.

20. The order sought is modest in quantum having regard to an ICL’s involvement over a period of two years.

21. It is appropriate that an order be made as sought by the ICL.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 July 2016.

Associate: 

Date:  29 July 2016