Zangari & Ferreiro (No 2)
[2023] FedCFamC1F 84
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zangari & Ferreiro (No 2) [2023] FedCFamC1F 84
File number(s): PAC 2379 of 2018 Judgment of: BERMAN J Date of judgment: 23 February 2023 Catchwords: FAMILY LAW – COSTS – Circumstances justifying order – Where the ICL seeks an order for costs – Where the parties do not oppose the quantum of costs – Where the father does not seek to be heard in relation to his half share – Where the mother opposes her half share – Consideration of whether the order would place the mother in considerable financial hardship – Consideration of s 117 of the Act and s 105 of the Act – Orders. Legislation: Family Law Act 1975 (Cth) ss 105, 117(2A), 117(3), 117(4) Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 6 February 2023 Place: Heard in Parramatta, delivered in Adelaide Counsel for the Applicant: Mr Fermanis Solicitor for the Applicant: WM Lloyd & Associates Counsel for the First Respondent: Ms Breeze Solicitor for the First Respondent: Cambridge Law Counsel for the Second and Third Respondents: Ms Snelling Solicitor for the Second and Third Respondents: Yazbeck Law Counsel for the Independent Children's Lawyer: Mr Scarlett Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law ORDERS
PAC 2379 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZANGARI
Applicant
AND: MR FERREIRO
First Respondent
MS M FERREIRO
Second Respondent
MR L FERREIRO
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
23 February 2023
THE COURT ORDERS THAT:
1.Mr Ferreiro, do pay his share of the costs of the Independent Children’s Lawyer, fixed in the sum of FIVE THOUSAND SIX HUNDRED AND THIRTY FOUR DOLLARS AND SEVENTY FIVE CENTS ($5,634.75) within thirty (30) days of the date of this order.
2.The application of the Independent Children’s Lawyer for costs as against Ms Zangari be dismissed with no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Zangari (“the mother”) and Mr Ferreiro (“the father”) are the parents of X (“X”) born 2011 and Y (“Y”) born 2012 (collectively “the children”).
The parties separated on 4 May 2018. The father commenced proceedings on 29 May 2018 seeking parenting orders.
The first tranche of proceedings were resolved by final Consent Orders made on 25 November 2019.
Following further conflict between the parties, the mother commenced proceedings for property settlement on 4 June 2020 and by Amended Initiating Application filed 22 October 2020, she also sought parenting orders.
The proceedings, both as to property and parenting considerations, were made more complex by the joinder of the paternal grandparents.
The final Consent Order of 25 November 2019 provided that the parties have equal shared parental responsibility with the children remaining in the primary care of the mother and spending alternate weekends and half school holidays with the father.
At least in part, the catalyst for the renewed proceedings arose from X not spending time with the father since April 2020.
The orders sought by each of the parties by way of Further Amended Initiating Application filed 2 February 2023 and Further Amended Response filed 5 February 2023, place the parties in diametric opposition to each other.
The complexity of the proceedings and the potential for the children, in particular X, to become further entrenched in their attitude towards each of the parties necessitated the appointment of an Independent Children’s Lawyer (“ICL”).
The cautious approach of the ICL was to give weight to the recommendations of the Child Court Expert as set out in her Family Assessment Report dated 8 July 2022 but to await the completion of the evidence before settling upon a concluded position.
The proceedings were listed before me for final hearing commencing 6 February 2023. The parties were represented by counsel as was the ICL.
At the commencement of the hearing, the parties indicated that if some time was allowed, the prospects of resolution were reasonable. As matters transpired, a Minute of Order was presented at the conclusion of the day which, with some amendments, concluded the proceedings both as to property and parenting matters.
At the conclusion of the hearing, and noting that counsel was not required for the balance of the five days as allowed, the ICL sought costs in the sum of $11,269.55.
The orders sought by the ICL is that each of the parties pay one half of the total costs fixed in the sum of $5,634.75.
THE COSTS APPLICATION
Neither party spoke against the quantum of the costs sought by the ICL. Whilst there was no enquiry as to how the costs were calculated, given the complexity and the protracted nature of the proceedings, I consider that the costs are reasonable.
The mother opposes the order for costs on the basis that if required to pay, she would suffer considerable financial hardship.
Neither of the parties are in receipt of legal aid and in circumstances where the father did not wish to be heard, his silence can be taken as consent to him paying the sum of $5,634.75 (being his one half of the contribution towards the ICL’s costs). The question is whether the mother would suffer financial hardship were she ordered to pay her one half of the contribution towards the ICL’s costs.
HOW SHOULD THE ICL’S COSTS APPLICATION BE DETERMINED?
I have regard the provisions of s 117(3) and (4) of the Family Law Act 1975 (Cth) (“the Act”). A determination as to whether a costs order should be made is to be determined by the application of the provisions of s 117(2A) of the Act.
Accordingly, it is necessary to consider the financial circumstances of the mother to ascertain the extent to which the orders, as sought by the ICL, would create hardship.
The orders provide for X to remain in the primary care of the mother but to explore the reestablishment of her relationship with the father. Y’s care is to be shared between the parties.
Given that the Court had the advantage of a joint balance sheet prepared as at 3 February 2023, the mother retains the following property:-
(1)ANZ Bank account $382
(2)Motor Vehicle 1 $1,000
(3)Clothes and jewellery $500
The settlement would provide the mother with a settlement sum of $210,000 however, she has the following liabilities:-
(1)The sum of $71,258 owed to Mr N;
(2)At least the sum of $103,694 for outstanding legal fees; and
(3)Costs to the second respondent of $15,000.
It would be likely that the mother will be without significant property and therefore potentially impecunious.
By reference to her Financial Statement sealed 28 October 2022, the mother is employed as an educator and is in receipt of a weekly income of approximately $1,184 which is offset by her reasonable expenditure of approximately $1,180.
It is notable that she receives little or no financial support from the father and given his stated income is $470 per week, it is unlikely that the father will ever make any meaningful contribution towards the cost of the children.
Whilst I accept that the broad principle is that a costs order sought by the ICL should usually be considered favourably, if the order sought by the ICL would place the mother in significant hardship, then pursuant to s 117(4) of the Act the order should not be made.
I consider that if the mother was required to pay her share of the costs of the ICL, it would be an order forlorn of hope.
The mother would not be able to pay the sum as sought and it is difficult to see the utility of any subsequent enforcement proceedings.
In addition to a consideration of s 117(4) of the Act, I also consider that s 105 of the Act enables the Court to exercise a discretion not to enforce an order or decree made.
In the circumstances as presented, I consider that the father should pay his share of the costs of the ICL, fixed in the sum of $5,634.75, but that I should exercise my discretion and find that to require the mother to pay her share would cause her significant hardship that would in part, have the potential to adversely affect the interests of the children.
Given the circumstances of the father, I consider it not unreasonable that he pay the amount as sought within thirty days of the date of this order.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 23 February 2023
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