ZEBRO & ZEBRO

[2020] FamCA 307

FAMILY COURT OF AUSTRALIA

ZEBRO & ZEBRO [2020] FamCA 307

FAMILY LAW – COSTS – Application for costs order by the Independent Children’s Lawyer – Where the father is solely financially responsible for the child – Where contribution to the Independent Children’s Lawyer’s costs would cause financial hardship for himself and the child – Ordered application be dismissed.

Family Law Act 1975 (Cth), s 117 (4) (b)

APPLICANT:  Mr Zebro

RESPONDENT: Ms Zebro

INDEPENDENT CHILDREN’S LAWYER: Acorn Lawyers

FILE NUMBER: WOC 973 of 2015

DATE DELIVERED: 30 April 2020

PLACE DELIVERED: In Chambers

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 5 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Caldwell Martin Cox

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Acorn Lawyers

Orders

1. That the application of the Independent Children’s Lawyer for a contribution by Mr Zebro to costs of a trial 27-30 August 2018 is dismissed.

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 Zebro & Zebro 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 NEWCASTLE

FILE NUMBER: WOC 973 of 2015

Mr Zebro

Applicant

And

Ms Zebro

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application for costs of an Independent Children’s Lawyer (“ICL”) arising from a trial before me in the Parramatta Registry on 27-30 August 2018.

2. The mother was assisted by a grant of Legal Aid. No contribution was therefore sought from her.

3. The ICL pressed for a contribution by the father of $4,885.65 being one half of total costs incurred.

4. On 2 November 2018 the Court received timely submissions on behalf of the father.

5. The Court regrets that a lengthy period of time, 18 months, has passed since those submissions were filed.

The Law

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) states:

   (1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)The financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (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 answer 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.

   Costs of Independent Children's Lawyer

   (3) 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.

   (4)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.

2. An ICL is required to make an application as a matter of public policy.

3. In this case, the father has the full-time care of the child and is financially responsible for her upbringing.

4. He incurred legal costs of more than $100,000.

5. The father is self-employed and organised his work around the needs of the child.

6. His employment made him ineligible for Legal Aid but his income is not at a level where he could contribute to the costs of the ICL without hardship both for himself and the child.

7. This was a delicate and difficult matter where the mother was unable to see the need to provide medical evidence in relation to her mental health. The ICL took up the burden of issuing relevant subpoenae.

8. The father, through his submissions expressed his appreciation of the work of the ICL but frustration at the thought that it would be him paying, at least in part, for work which properly could have been avoided by information from the mother.

Conclusion

1. I am satisfied that an order for contribution to costs would impose hardship on the father.

2. An order is made dismissing the application of the ICL.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 30 April 2020.

Associate: 

Date:  30 April 2020