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

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

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.
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

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.
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…

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 Yaseen and Yaseen

Details

AGLC: Yaseen and Yaseen [2019] FamCA 718
Case: [2019] FamCA 718
Decision Date: 4 October 2019

CaseChat Overview and Summary

In *Yaseen and Yaseen*, Foster J of the Family Court of Australia considered an application concerning contributions towards the costs of the Independent Children’s Lawyer. The dispute involved the financial responsibilities of the parents in relation to the legal representation of their child.

The central legal issue before the court was how the costs incurred by the Independent Children’s Lawyer should be apportioned between the father and the mother. The court was required to determine the appropriate contribution each parent should make towards these expenses.

Foster J ordered that both the father and the mother were to pay the sum of $5,013.74 to Legal Aid NSW as a contribution towards the Independent Children’s Lawyer’s costs. These payments were to be made within two months from the date of the order.

Orders

Orders of the court

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.

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.

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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