Willemsen and Willemsen (No. 2)

[2018] FamCA 376

FAMILY COURT OF AUSTRALIA

WILLEMSEN & WILLEMSEN (NO. 2) [2018] FamCA 376

FAMILY LAW – COSTS – Application by the Independent Children's Lawyer

Family Law Act 1975 (Cth)

De Roma v De Roma (2013) 49 Fam LR 226

APPLICANT: Mr Willemsen

RESPONDENT: Ms Willemsen

INDEPENDENT CHILDREN’S LAWYER: Ark Law

FILE NUMBER: SYC 7939 of 2015

DATE DELIVERED: 28 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 18 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney, SC

SOLICITOR FOR THE APPLICANT: Doolan Wagner Family Lawyers

COUNSEL FOR THE RESPONDENT: Dr Brasch, QC

SOLICITOR FOR THE RESPONDENT: Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Windsor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ark Law

Orders

1. The parties pay equally the costs of the Independent Children's Lawyer in the total sum of $16,051, being $8,025.50 each less any amount either party respectively has already paid towards the costs of the Independent Children's Lawyer.

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 Willemsen & Willemsen (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 SYDNEY

FILE NUMBER: SYC 7939  of 2015

Mr Willemsen

Applicant

And

Ms Willemsen

Respondent

REASONS FOR JUDGMENT

1. The Independent Children's Lawyer, after final parenting orders were made, made an oral application for the parties to pay her costs.

2. The competing parenting applications of the father and mother settled on the fifth day of a scheduled seven day hearing and consent orders were made.

3. The central issues were about allegations of sexual abuse made by the mother against the father in relation to the child of the marriage, B, who is aged five. Those allegations are particularised in my reasons of 21 December 2017 at [13].

4. Ultimately, both the parents and the Independent Children's Lawyer submitted to the court that there had not been sexual abuse and, accordingly, no finding of unacceptable risk was sustainable.

5. Exhibit 34 is a statement of the Independent Children's Lawyer’s costs and disbursements on the Legal Aid scale totalling $16,051. Those costs are itemised and the reasonableness of their quantum was not challenged (I infer they were in accordance with the Legal Aid scale).

6. There is power to make a costs order in favour of an Independent Children's Lawyer (s 117(3) Family Law Act (“the Act”)).

7. Section 117(2) of the Act allows a court, if there are circumstances justifying in doing so, to make a costs order as the court considers just.

8. In considering what order (if any) is just, s 117(2A) of the Act sets out the matters to which the court should have regard.

9. The Independent Children's Lawyer is to be treated as being unfunded (s 117(5) of the Act; De Roma v De Roma (2013) 49 Fam LR 226.

10. The parties in these proceedings had significant wealth with net assets including superannuation being worth approximately $9.5 million.  The property settlement order that I made had the effect of dividing the assets approximately 63.75 per cent to the husband and 36.25 per cent to the wife.

11. Subject to the challenge that each wished to make to particular items in the legal aid costs memo, each party accepted that they were responsible for one half of those costs.

12. Both the father, and the mother, challenge whether they should pay for particular items in the Independent Children's Lawyer’s costs memo (Exhibit 34). Senior counsel for the father and senior counsel for the mother both submitted that any costs order should not include work done by the Independent Children's Lawyer in respect of the preparation and appearance at an interim hearing on 20 December 2017 (an amount of $1,100) and the disbursement claimed for the preparation of the tender bundle ($385). Presumably, these submissions relied upon s 117(2A)(c) and (e) of the Act and assertions about the Independent Children's Lawyer conduct in relation to part of the proceedings and the fact that she was wholly unsuccessful in opposing part of the orders sought by the father at an interlocutory hearing. The argument was that a weighing of those considerations would disentitle the Independent Children's Lawyer from claiming costs relevant to this part of the work.

FEE FOR PREPARATION AND APPEARANCE AT THE INTERIM HEARING ON 20 DECEMBER 2017

1. On 20 December 2017, the father made an application for a variation of interim parenting orders made by Johnston J on 14 March 2016.

2. The mother totally opposed the father’s application.

3. Johnston J had required the child’s time with the father to be professionally supervised and had set out particular hours during the week when the child’s time with the father would take place. The father’s written application sought a relaxation of the provisions for supervision so that one of three supervisors nominated by him could provide the supervision and that there be some changes to the times the child would spend with him.

4. At the end of the hearing, senior counsel for the father indicated that if the court ultimately determined there would be some benefit in some continuing professional supervision, the father would not oppose an order that between that date and the final hearing there be up to twelve occasions of supervised time reportable by the existing supervision service.

5. For reasons provided on 21 December 2017, orders were made in the terms sought by the father.

6. During the interim hearing on 20 December 2017, counsel for the mother cross examined each of the three proposed supervisors. The Independent Children's Lawyer cross examined one of them. The mother submitted that none of the supervisors were suitable. The Independent Children's Lawyer’s position was that two of the supervisors were not suitable. I did not agree with the mother’s or Independent Children's Lawyer’s submission about that.

7. It was submitted by senior counsel for the father that the Independent Children's Lawyer was, in the interim proceedings, “at best unhelpful” and that there was no role for them on that occasion or nor was one adopted. I don’t accept those propositions as the Independent Children's Lawyer did make clear what she wished the court to order and it cannot be said that the Independent Children's Lawyer’s position was wholly unvindicated. The Independent Children's Lawyer submitted there would be a benefit to the court and the father if there was still some reports from the professional supervising service to ensure that at the final hearing there was a mixture of evidence from professional supervisors and those lay people who were providing supervision. That was a position ultimately adopted by the father.

8. Whilst senior counsel for the mother joins the father in making an application that the Independent Children's Lawyer not be entitled to a costs order for this hearing, the mother was totally unsuccessful in her application opposing the father’s application on that day. The Independent Children's Lawyer was in a large degree, supporting the mother’s position. It is churlish of the mother to then say that the Independent Children's Lawyer should not have her costs for this day.

9. Given the Independent Children's Lawyer is treated as unfunded, the financial strength of the parties substantially outweigh any complaint made against the Independent Children's Lawyer. The costs order shall include the Independent Children's Lawyer’s costs for 20 December 2017.

TENDER BUNDLE

1. On 12 October 2017 I made the following orders:

   11.    In respect to the parenting case, by 2 March 2018 the Independent Children's Lawyer is to provide to the parties a draft index of material that the Independent Children's Lawyer wishes the court to have by way of tender from subpoenaed material.

   12.    By 16 March 2018 each party is to indicate to the Independent Children's Lawyer any other material that they wish added to that tender bundle.

   13.    The tender bundle is to be prepared and filed by the Independent Children's Lawyer by 30 March 2018. That tender bundle is to be indexed and paginated.

2. The Independent Children's Lawyer did not comply with that order. On 12 April 2018, I extended time for the preparation and filing of the tender bundle by the Independent Children's Lawyer to 4pm 26 April 2018. There was also an order that the Independent Children's Lawyer forthwith forward to the parties the index to that tender bundle. There was some issue as to whether or not the Independent Children's Lawyer complied with that direction in a timely way. The Independent Children's Lawyer lodged the tender bundle with the court by 4pm 26 April 2018 but did not inform either of the parties that she had done so.

3. As a consequence, the tender bundle could not be used at the final hearing because procedural fairness had not been afforded to each of the parties. The matter was dealt with on the basis that individual documents were then tendered throughout the hearing.

4. The parties argue that the Independent Children's Lawyer should not be paid the disbursement incurred in preparing the tender bundle.

5. The Independent Children's Lawyer technically complied with the order as the order did not explicitly require copies of the tender bundle be provided to the parties. Clearly the sensible course would have been for the Independent Children's Lawyer to tell the parties that she had now complied with the order. Arrangements could then have been made between the Independent Children's Lawyer and the parties for the provision of copies of the tender bundle (at the costs of the parties).

6. The parties submit that they were put to their own costs of photocopying material from subpoenaed records. I do not place great weight on that submission because copying of the Independent Children's Lawyer’s tender bundle would have to have been paid by the parties in any event.

7. Whilst accepting there is some basis for the complaint made by the parties, the disbursement that is being charged is a disbursement that arose as a result of the Independent Children's Lawyer complying with the actual order that had been made. In those circumstances, I do not intend to disallow that charge.

CONCLUSION

1. The only considerations that are relevant are s 117(2A)(a) (c) and (e) of the Act. Balancing those considerations, I find it is just for each party to pay one half of the costs sought by the Independent Children's Lawyer.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 28 May 2018

Associate: 

Date:  28.5.18