Whitehall and Warren

[2018] FamCA 9

FAMILY COURT OF AUSTRALIA

WHITEHALL & WARREN [2018] FamCA 9

FAMILY LAW – COSTS – Application by the Independent Children’s Lawyer for costs – Where the mother is legally aided – where the father was the applicant but filed a Notice of Discontinuance – Where the matter was to be heard undefended – Where on the first day of trial the father wished to participate – Where the father had the benefit of the Independent Children’s Lawyer – Where the father is in paid employment – Ordered the father to pay Legal Aid NSW the sum of $1,677 by way of contribution to costs with 12 months to pay

Family Law Act 1975 (Cth), s 117

APPLICANT: Mr Whitehall

RESPONDENT:	Ms Warren
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW Gosford

FILE NUMBER: NCC 2698 of 2013

DATE DELIVERED: 15 January 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 10 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	N/A
THE APPLICANT IN PERSON:	Mr Whitehall

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT:	Fowler Predny Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	N/A
SOLICITOR  FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW Gosford

Orders

1. That the father pay to Legal Aid NSW the sum of $1,677.00 by way of contribution to costs with 12 months to pay.

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 Whitehall & Warren 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: NCC2698/2013

Mr Whitehall

Applicant

And

Ms Warren

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Independent Children’s Lawyer (“ICL”) for contribution by the father to costs of representation of the interests of two children in a five day trial before me in September and December 2016.  The amount sought is $3,344.

2. Orders and reasons for judgment were delivered on 10 May 2017.

3. On that day an order was made as follows with respect to the issue of costs:

   15.The father shall provide to the ICL and to my Associate any material (a Financial Statement) relating to his current financial circumstances in relation to the Application for costs made today by the ICL, within 28 days.

4. On 6 June 2017 in compliance with that order the father filed a Financial Statement.

5. No application was made for the mother to contribute.  The mother had a grant of Legal Aid.

The Law

1. The principle established in s 117(1) of the Family Law Act 1975 (Cth) (“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 that there are circumstances that justify the Court considering an order for contribution to costs.

Brief History of Relevant Events 

1. The father who was the Applicant in this round of litigation filed a Notice of Discontinuance of the application in July 2016.

2. The mother was then directed to file an Amended Response which she did.  The number of days of hearing time was reduced to two, given that the matter was undefended.

3. On the first day of trial in September 2016 the father appeared.[1]  He sought no particular orders but wished to participate.

   [1] Reasons for Judgment delivered 10 May 2017, pars 231- 235

4. Understandably enough the mother objected to anything other than the father being present in the courtroom to observe.

5. The father was given the opportunity to speak to the duty solicitor on the first day, to then prepare an affidavit and to participate.

6. As a result the matter commenced on the afternoon of the second day and the proceedings went over on the fourth day part-heard, for three months.  Five days were thus taken up.

7. The father had the benefit of the participation of the ICL and solicitor advocate instructed with particular reference to cross-examination and submissions.

8. Accordingly relevant factors in the Act must be considered.

Financial Circumstances

1. In June 2017 the father disclosed an income of $1,009 gross as an average weekly amount.  The father has had employment which generates this income since about October 2016.

2. The father has the two older children of the relationship living with him.  The elder child B is now almost 18, left school in 2016 and is said to be earning $80 per week.

3. The younger child is C aged 16 whose residence with the father was confirmed by final orders.  He is at school.

4. The youngest child D aged 10 lives with the mother.  Her residence there was confirmed by final orders.

5. The father pays $25.80 per week for the practical support of D.

6. The most significant weekly expenses of the father are:

   Tax  227

   Rent  350

   Personal loan            160    

   Total  $   737

7. All other weekly expenditure increases that amount to $861.

8. The father has two cars.  Probably one of those vehicles is used by the two boys.  He otherwise has minimal assets.

9. Household expenses for food and utilities are expressed moderately.

Conclusion

1. The father is 51. His income and circumstances will probably improve given his past solid work history.

2. At present he has a capacity to contribute, although limited.

3. Accordingly, I have made an order for the father to contribute one half of the amount sought by the ICL.

4. The order will be for $1,677 with 12 months allowed to pay.

5. An order is made accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 15 January 2018.

Associate: 

Date:  15 January 2018