ICL PRESSES CONTRIBUTION OF THE #COSTS AGAINST THE FATHER WHO CAN BARELY MAKE ENDS MEET
ZEBRO & ZEBRO
FAMILY COURT OF AUSTRALIA
[2020] FamCA 307
This is an Application for costs order filed by the Independent Children’s Lawyer (ICL).
FACTS:
The ICL filed an Application for costs order. The Application for costs would have been avoided if the information from the mother regarding her mental health was provided. Due to this, the ICL took up the burden of issuing relevant subpoenas.
Since Ms. Zebro (the mother) was assisted by a grant of Legal Aid, no contribution was sought from her. The ICL pressed for a contribution by Mr. Zebro (the father), which was one-half of the total costs incurred.
The father has the full-time care of the child and is financially responsible for her upbringing. The father is self-employed and organised his work around the needs of the child. 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.
ISSUE:
Whether or not the Court should order the father to pay for the costs sought by the ICL.
HELD:
Each party to proceedings shall bear his or her own costs.[1] However, if the Court is of opinion that there are circumstances that may justify it in doing so, it may make orders as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just. The Court should consider the financial circumstances of each of the parties to the proceedings and whether any of the parties is in receipt of assistance by way of legal aid, among others. [2]
However, in proceedings in which an Independent Children’s Lawyer for a child has been appointed, if a party to the proceedings has received legal aid in respect of the proceedings; or 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 against that party in relation to the costs of the Independent Children’s Lawyer. [3]
The Court was satisfied that an order for contribution to costs would impose hardship on the father; therefore, it made an order that dismissed the application of the ICL.
[1] Section 117 of the Family Law Act 1975 (Cth), (1).
[2] Ibid, (2) and (2a).
[3] Ibid, (4).
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Cameron McKenzie
To expand on s117(2A)
From Nada & Nettle (Costs) [2014] FamCAFC 207 at [6-8].
“The starting point for a discussion of costs is s117(1) of the FLA and the guiding principle of that section is each party to proceedings under the Act should bear his or her own costs unless the Court is of the opinion that there are circumstances that justify the making of a costs order (s117(2)). Where the Court is of the opinion that the circumstances justify the making of a costs order, s 117(2A) sets out matters to which the Court should have regard in determining what, if any, order should be made.
In making this determination the court uses the considerations under s117(2A)
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
such other matters as the court considers relevant -
When considering offers of settlement from Lenova & Lenova (Costs) [2011] FamCAFC 141 at 11-13
“A timely offer in writing genuinely made might, then, be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation. Conversely, where, consequent upon success in an action, a litigant can point to the making of a genuine and timely offer having been made, that offer might be seen as an important (albeit not the only) matter in the exercise of the discretion as to the ordering of costs."
Lastly, impecuniosity (not having much money) is not a bar to a costs order being made when it is otherwise justified (D & D (Costs) (No 2) (2010) FLC 93-435).
Gayle Li