Yu and Morris (No. 2)

[2007] FamCA 1410

FAMILY COURT OF AUSTRALIA

YU & MORRIS (NO. 2)   [2007] FamCA 1410

FAMILY LAW – COSTS – Independent Children’s Lawyer

Family Law Act 1975 (Cth)

 CDJ & VAJ (No. 2) (1998) 24 Fam LR 1

APPLICANT: Mr Yu

RESPONDENT:	Ms Morris
INDEPENDENT CHILDREN’S LAWYER:	Boyd Olsen Lawyers

FILE NUMBER: NCF 710 of 2003

DATE DELIVERED: 29 November 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 29 November 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT Mr Cumming

THE RESPONDENT IN PERSON Ms Morris

SOLICITOR FOR INDEPENDENT

CHILDREN’S LAWYER:

Ms J Olsen

Orders

1. That the father pay half of the Independent Children’s Lawyer’s costs as agreed upon or failing agreement as taxed.

2. That the application for an order for costs against the mother is dismissed.

3. That the mother pay the outstanding balance of her proportion of the fees of Dr B, psychiatrist, at the rate of fifty dollars ($50.00) per fortnight first payment to be made 13^th December 2007.

4. That the application for an order for costs made by the mother in her affidavit sworn 5^th October 2007 is dismissed.

IT IS NOTED that publication of this judgement under the pseudonym Yu & Morris is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  NCF 710 of 2003

MR YU

Applicant

And

MS MORRIS

Respondent

Ex – TEMPORE REASONS FOR JUDGMENT

1. An application is made on behalf of the independent children’s lawyer that the parties bear the costs incurred by the independent children’s lawyer.

2. The independent children’s lawyer has submitted a schedule of those costs and the quantum is not in issue.

3. Section 117(3) combined with Section 117(2) makes it clear that a costs Order may be made in the Court’s discretion in cases with an independent children’s lawyer. 

4. The High Court in CDJ & VAJ (No. 2)[1] expressed the view that as a general proposition the court should take into account that the independent children’s lawyer is appearing in the public interest to further the best interests of the child in contested parenting proceedings between parents and other related parties, and to that extent is performing a public service.  However, I am still required to take into account relevant matters pursuant to Section 117(2A) of the Act.

   i)(1998) 24 Fam LR 1

5. So far as the father is concerned he through his solicitor submits to a Court Order that he pay half of the independent children’s lawyer’s costs, or alternatively, does not make any submissions in relation to that costs issue.  He has not filed a Financial Statement, or if one has been filed on his behalf, I have not been referred to it.

6. The issues for trial which were determined by me were complicated in a number of respects, and which are apparent from the Reasons for Judgment given on 26 September 2007.  A number of matters raised by the independent children’s lawyer were not ultimately accepted.  However, that should not be regarded as representing an aspect of disentitlement so far as a Costs Order is concerned, given that the independent children’s lawyer has an important role to fulfil, including one which is truly independent for the purpose of putting forward relevant issues for determination.

7. I have read the mother’s Affidavit and her Financial Statement sworn 5 October 2007.  I accept her evidence.  It is clear from that material that the mother is in straightened financial circumstances.

8. The mother has paid a substantial amount, relatively speaking, to the single expert witness, Dr B, in relation to his fees both in respect of preparation for his report and ultimately his further appearing in Court to give oral evidence.  An amount of approximately $500.00 remains outstanding and the mother has proposed that she repay that outstanding amount by instalments of $50.00 a fortnight.

9. In the circumstances of this particular matter I will not make an Order for costs as sought by the independent children’s lawyer, so far as the mother is concerned.  The reasons are that notwithstanding the important role that the independent children’s lawyer was required to undertake, the practicalities are that the mother’s financial circumstances are such that she does not have the capacity to pay in the immediate or foreseeable future.  To that extent any Order for costs would be academic and is unlikely to be able to be enforced.

10. I will make an order that the father pay half of the independent lawyer’s costs in accordance with the submission made by his solicitor whereby he did not wish to be heard should such an order be contemplated.

11. An application for costs is also made by the mother against the father in relation to legal costs she has previously incurred, as well as personal expenditure in respect of her attendances at Court, including today.

12. As previously referred to there were a number of complicated issues that required determination in these proceedings.  The general rule in this Court pursuant to Section 117(1) of the Act is that each party bears his or her own costs.  There is a discretion to make an Order for costs if a circumstance has been established that makes it just or proper to do so.

13. I do not consider in the context of the complicated issues that needed to be determined that it is just or appropriate to make an Order for costs in favour of the mother as sought by her.

14. Consequently the application for an order for costs made by the mother in her Affidavit sworn 5 October 2007 is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate

Dated:  29 November 2007