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

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

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

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.
Final orders were made by consent on 23 May 2016.
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.
No submissions have been received from the father.
The ICL has had a significant engagement in the proceedings since being appointed in April 2014.
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).
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.
Section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Watts and Watts

Details

AGLC: Watts and Watts [2016] FamCA 616
Case: [2016] FamCA 616
Decision Date: 29 July 2016

CaseChat Overview and Summary

In *Watts and Watts*, Foster J of the Federal Circuit and Family Court of Australia considered an application concerning costs. The specific nature of the dispute between the parties, identified as the Respondent Father and the other party (presumably the Applicant Mother, though not explicitly stated in the provided text), is not detailed, but the proceedings involved an Independent Children's Lawyer.

The central legal issue before the court was the determination of the costs payable by the Respondent Father to the Independent Children's Lawyer. This involved assessing the quantum of those costs and the timeframe for their payment.

Foster J ordered that the Respondent Father pay the Independent Children’s Lawyer’s costs in the sum of $3486 to Legal Aid NSW. This payment was required to be made within one month from the date of the order. The court noted that the precise form of the order was contingent upon its formal entry into the Court’s records.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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