Yaseen and Yaseen

[2019] FamCA 718

FAMILY COURT OF AUSTRALIA

YASEEN & YASEEN [2019] FamCA 718

FAMILY LAW – COSTS – Application for costs order by Independent Children’s Lawyer – Discussion of general principles – Where ultimately matter settled by consent – Where the Independent Children’s Lawyer’s significant engagement in the proceedings – Where it is ordered that each party pay by way of contribution to the Independent Children’s Lawyer’s costs the sum of $5,013.74

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936
Parke & the Estate of the Late A Parke (2016) FLC 93-748

APPLICANT: Ms Yaseen

RESPONDENT: Mr Yaseen

INDEPENDENT CHILDREN’S LAWYER: Ms Shedden

FILE NUMBER: PAC 4679 of 2015

DATE DELIVERED: 4 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: By way of written submission last received on 22 August 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Barber & Massey

SOLICITOR FOR THE RESPONDENT: Solon Lawyers Solicitors & Attorneys

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

Orders

1. That within two months from this date the father pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the sum of $5,013.74.

2. That within two months from this date the mother pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the sum of $5,013.74.

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 Yaseen & Yaseen 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: PAC 4679 of 2015

Ms Yaseen

Applicant

And

Mr Yaseen

Respondent

REASONS FOR JUDGMENT

1. The application for determination is the application by the Independent Children’s Lawyer (“ICL”) for an order for costs of and incidental to the ICL’s engagement in these proceedings.

2. The proceedings as to parenting and property were resolved by the parties by agreement and orders were made by consent on 8 August 2019 as follows:

   (1)That all previous parenting orders with respect to the children X born in 2004, Y born in 2006, and Z born in 2010 are discharged.

   (2)That the parties have equal shared parental responsibility for the children X born in 2004 and Y born in 2006 and Z born in 2010.

   (3)That the children X and Y shall live with the mother.

   (4)That the child Z shall live with the father.

   (5)That the children X and Y shall spend time with the father as may be agreed between the parties and shall have telephone communication with him at all reasonable times.

   (6)That the child Z spend time with the mother as may be agreed between the parties and shall have telephone communication with her at all reasonable times.

   (7)That without admission each party be and is hereby restrained from using any physical punishment on the children.

   (8)That without admission the parties be and are hereby restrained from discussing these proceedings or the evidence adduced in the proceedings with the children or permitting any other person to do so.

   (9)That in the event either parent is unable to collect the children the father is at liberty to send an SMS to … to advise those details and the mother is at liberty to send an SMS to … to advise those details.

   (10)That for the purposes of Order 5 the mother shall initiate such calls to ….

   (11)That for the purposes of Order 6 the father shall initiate such calls to ....

   (12)That each of the mother and the father are permitted to have the children travel interstate with either of them at their sole discretion to determine provided such party travelling with the children gives the other party particulars of such destination.

   (13)That each parent is hereby restrained from attending upon the children, or any of them, at the child's school unless the children are ordinarily in such parent's care pursuant to these orders without the written consent of the other parent.

   (14)That each parent take the children to their extracurricular activities.

   (15)That neither parent is permitted to enrol the children in any extracurricular activity during the other party's time with the children without the consent of the other party.

   (16)That each parent be restrained from denigrating the other parent, or any  member of the children's extended family, and that they not allow any other person to do so in the presence or hearing of the children, and  that  each  parent  be  restrained  from discussing these proceedings with the children.

   (17)That each parent may receive from the school and/or childcare centre copies of all school reports, notices and photographs and may telephone the children’s school and/or childcare centre to discuss progress with staff and access information about the children and may attend school or extracurricular activities of the children to which parents are normally invited.

   (18)That each parent be at liberty to receive information about the children from their treating medical practitioners.

   (19)That the parties communicate by email unless in the case of an emergency then by way of text message or telephone to the other parent's mobile and that each party shall advise the other of any change in their email address and or mobile telephone number within 24 hours of any change.

   (20)That the children are not to be issued with an Australian Passport without the consent of both parties or a Court order.

   (21)That until further order each party, Ms Yaseen, date of birth …1977 and Mr Yaseen, date of birth …1976, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children, X born … 2004, Y born … 2006 and Z born … 2010 from the Commonwealth of Australia for a period of two years.

   (22)And it is requested that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintaining the name of each child on the Watchlist for the said period, or until the Court orders its removal.

   (23)That the monies currently held on trust and or Controlled Money Investment for the parties by Mr B Solicitor, be divided between the parties on an equal basis and for this purpose the parties shall within seven (7) days from the date of this order sign an authority prepared by the wife's Solicitor addressed to Mr B, Solicitor, authorising him to pay 50% of all money held by him on behalf of the parties whether in his trust account or in a Controlled Money Investment to the husband or as he may direct and to pay 50% of all money held by him on behalf of the parties whether in his trust account or in a Controlled Money Investment to the wife or as she may direct.

   (24)That each party shall and is hereby directed to sign all documents and things and do all such acts as may be required to give effect to these orders.

   (25)That it is sufficient evidence of neglect or refusal if either party refuses or neglects to sign any such document or deed necessary to give effect to these orders within 7 days of a written request to do so.

   (26)That if either party refuses or neglects to sign (within 7 days of a written request to do so) any document necessary to give effect to the terms of these orders the Registrar or a Deputy Registrar of the Parramatta Registry of the Family Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document/s on behalf of the defaulting party.

   (27)That unless otherwise specified herein and save for the purpose of enforcing any monies due under the terms of these orders:

   27.1The parties shall each be solely entitled to the exclusion of the other to all other property in their separate possession as at the date of the signing of this agreement;

   27.2Insurance policies remain the sole property of the owner named thereon;

   27.3Each party retain their superannuation entitlements to the exclusion of the other party;

   27.4Individual bank accounts shall be retained by the account holder;

   27.5Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party hereby entitled pursuant to this agreement;

   27.6Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

   (28)That unless otherwise specified herein the parties shall each otherwise be responsible for payment of any debt which is in each of their sole names and neither shall have recourse to the other in that regard and each party shall hereafter indemnify the other and forever keep the other indemnified in relation to all liabilities presently and in the future incurred by that party.

   (29)That the parties shall be jointly liable as between themselves for all actions, suits, claims, and demands whenever and howsoever arising with respect to the construction in the wife's name as owner builder of the improvements at the properties situate at and known as 1 and E Street, Suburb C NSW.

   (30)That both parents are to consult with a Family Dispute Resolution Practitioner at a Family Relationship Centre or elsewhere or such other consultant as may be agreed between the parents to assist with:

   (a)resolving any dispute between the parents as to the terms or operation of the parenting orders;

   (b)reaching agreement about any changes to be made to the parenting orders arising from any change in the needs or circumstances of the children or any of them, or the parents in the event that any dispute or disagreement arises concerning such changes.

   (31)That neither parent shall make an application to a Court exercising jurisdiction under the Family Law Act for a variation of the parenting  orders without first having complied with order 28 in relation to such matters unless in circumstances where the applicant is exempt from providing a s 60I certificate.

   (A)Both parties acknowledge and agree that they will each have regard to the children's wishes before bringing any contravention proceedings relating to the time the children spend with them.

   (B)The child X born in 2004 is now known by the name [X].

   (C)The mother intends enrolling the child Y born … 2006 at D School.

   (D)The father intends enrolling the child Z born … 2010 at F School, Suburb G.

   (32)The Independent Children’s Lawyer is to forward an electronic typescript of the document marked “A” as amended to the Court within two business days.

   (33)In the event of any application for costs by the Independent Children’s Lawyer being made, then such application be made by way of written submissions filed and served within 14 days from this date with the parties to respond thereto by filing and serving their written submissions within a further 14 days with judgment as to costs thereafter reserved to chambers.

   (34)All outstanding applications be dismissed.

   (35)The matter be removed from the active pending cases list.

   (36)All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

3. The ICL participated in several interim hearings dealing with the parties as competing parenting and property applications, so as such had a significant role in these proceedings representing the interests of the subject child.

ICL Costs

1. The ICL seeks an order that the parties pay the ICL’s costs that are in the sum of $10,027.49 with each party to bear one half of such costs.

2. The law as to costs is well settled. Section 117 of the Family Law Act 1975 (“the Act”) provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.

3. 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.

4. The relevant considerations in relation to an order for costs are set out in s 117(2A).

5. 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.

6. 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.

7. 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.

8. As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936, 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.

9. In De Roma & De Roma [2013] FamCA 566 Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.

10. The threshold presumption as to each party bearing their own costs has no application to the ICL, who is not a party.

11. 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 (supra)).

12. 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.

13. 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.

14. Parenting proceedings were commenced by the applicant mother in September 2015.

15. The ICL was appointed in October 2015 against a background of allegations of child abuse and mental health issue. The ICL has had a close engagement in the proceedings since including a number of appearances before the registrars and the Court for judicial case management. Otherwise, the ICL has attended to the issue of various subpoena relevant to the issues for determination.

16. The ICL appeared on interim hearing before the Senior Registrar on 24 February 2016, again for further hearing before the Senior Registrar on 29 June 2016 and again on interim issues before the Court on 18 November 2016.

17. Again in March 2017 the ICL was engaged in an interim hearing as to parenting subsequent to which the ICL instructed the agreed single Expert.

18. Both parties in these proceedings were privately funded.  The mother is not currently working and is in receipt of an income tested means pension.  The father is currently employed on a casual basis. However, relevantly, both parties received $50,000 as a result of interim property orders made by consent.

19. Neither party was wholly successful as the final parenting orders made on 8 August 2019 were a compromise between the orders sought by each party.  Judicial intervention assisted the parties in reaching a final consent position.

20. It is inappropriate that the ICL be left unfunded to the effect that the burden falls on the public purse where both parties have the capacity to meet the ICL’s costs.

21. The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) which states:

    Method of calculation of costs

    (1)The court may order that a party is entitled to costs:

    (a)of a specific amount;

    (b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);

    (c)to be calculated in accordance with the method stated in the order; or

    (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

22. It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162 that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”. The Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.

23. Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93-748 at [130]:

    If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…

24. Neither party makes any submission as to hardship in the event that the order sought is made.

1. It is appropriate that the parties contribute to the ICL’s costs.

2. As neither party complied with an order that they, within 14 days of receipt of the ICL’s submissions for costs, respond to the ICL’s submissions as to costs by filing their written submissions, it is unknown what the parties’ positions are as to the costs of the ICL. An order for costs will be made as sought by the ICL.

3. There will be orders that the parties each pay by way of contribution to the ICL’s costs the sum of $5,013.74.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 October 2019.

Associate: 

Date:  4 October 2019