WILLIAMS and Hatheway (No 2)

[2019] FamCA 435

FAMILY COURT OF AUSTRALIA

WILLIAMS & HATHEWAY (NO. 2) [2019] FamCA 435

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer sought costs from the parties in the substantive proceedings – Where the mother was ordered to pay half the costs – Where the father was permitted to submit an application to waive the fees of the Independent Children’s Lawyer to the Legal Aid Commission of NSW – Where that application was refused – Where the father has not provided any further financial information – Where the father was found to be employed in the substantive proceedings – Order for costs.

APPLICANT:

Mr Williams

RESPONDENT: Ms Hatheway

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 7523 of 2013

DATE DELIVERED: 5 July 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS 5 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Apelbaum

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Maclarens Lawyers

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

Orders

IT IS ORDERED

1. That not later than 11 October 2019, the father pay to the Legal Aid Commission of NSW the sum of $6,836 on account of 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 Williams & Hatheway (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 7523 of 2013

Mr Williams

Applicant

And

Ms Hatheway

Respondent

REASONS FOR JUDGMENT

1. Proceedings between Mr Williams (“the father”) and Ms Hatheway (“the mother”) in relation to their child Z who is six years old, were heard over a period of three days in March 2019. On 11 April 2019, orders were made and reasons for judgment delivered. The orders provided, inter alia, for the father to spend time with Z for periods of time, increasing over the following year. The matter will return for further hearing with an updated family report in November 2020.

2. At the end of the hearing on 22 March 2019, an application for costs was made by the Independent Children’s Lawyer (“ICL”). The mother agreed to pay half of the ICL’s costs in the sum of $6,836. The father did not agree.

3. The following orders were made:

   That the father, within seven days of the date of these orders, submit an application to waive fees to the Legal Aid Commission of NSW. In the event that the application is unsuccessful, then the father shall, within 28 days of being so notified, file and serve a Financial Statement and any written submissions he wishes to make in relation to the issue of the costs of the Independent Children’s Lawyer and the Independent Children’s Lawyer’s application for costs will be determined in chambers. 

4. The father duly sought from the Legal Aid Commission a waiver of fees. That application was refused.

5. The father was notified by letter dated 9 April 2019 that his application has been unsuccessful.

6. The father has not filed any Financial Statement or written submissions and the ICL now asks the Court to determine the application for an order that the father pay half of the ICL’s costs.

7. There is little evidence of the father’s financial position. He is self employed. He has chosen to put no further evidence before the Court.

8. The costs sought by the ICL are modest and it is appropriate that both parents should make a contribution to the representation of their child in the proceedings.

9. Orders will be made for the father to pay half of the costs of the ICL in the same terms as those orders which bind the mother.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 5 July 2019.

Associate: 

Date:  5 July 2019