Charlton and Sinclair (Costs)

[2009] FamCA 1359

FAMILY COURT OF AUSTRALIA

CHARLTON & SINCLAIR (COSTS) [2009] FamCA 1359

FAMILY LAW – COSTS – Oral application for costs made by the Independent Children’s Lawyer – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Charlton

RESPONDENT: Ms Sinclair

INTERVENOR Mrs Charlton

INDEPENDENT CHILDREN’S LAWYER: Ms Weber, Legal Aid NSW

FILE NUMBER: NCC 1008 of 2008

DATE DELIVERED: 4 December 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 4 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Weightman

SOLICITOR FOR THE RESPONDENT: Catalyst Family Lawyers

COUNSEL FOR THE INTERVENOR Not Applicable

SOLICITOR FOR THE INTERVENOR Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Weber, Legal Aid NSW

Orders

1. The Court entertains the oral application for costs made by the Independent Children’s Lawyer.

2. The application for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Charlton & Sinclair (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1008  of 2008

MR CHARLTON

Applicant

And

MS SINCLAIR

Respondent

And

MRS CHARLTON

Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

1. The proceedings presently before the Court concern parenting orders relating to the child J (“the child”), born in September 1995.  The child is the biological child of the applicant father, Mr Charlton, and the respondent mother, Ms Sinclair.

2. These proceedings were commenced by the filing of an Application for Final Orders on 17 January 2008.  The litigation has been long and tortuous.  Numerous interim parenting orders have been made in the course of the proceedings.  The final hearing began before this Court on Monday 30 November 2009, and concluded today, Friday 4 December 2009.  I have already indicated to the parties that I will shortly adjourn and reserve my decision.

3. As is customary, the Independent Children’s Lawyer has made an application for costs pursuant to s 117 of the Family Law Act 1975 (“the Act”).  That application is made as against both parties.

4. The mother is the recipient of a grant of legal aid in these proceedings.  I am informed of that by her counsel from the bar table.  The learned solicitor appearing for the Independent Children’s Lawyer does not dispute that fact.

5. The father and the paternal grandmother, who are individual parties to these proceedings, have conducted the entirety of the proceedings unrepresented.  Self-evidently, they are not the recipients of any grant of legal aid. However I draw the obvious inference that had their financial circumstances permitted it, they would have been independently represented by lawyers.  The fact that they are not represented by lawyers leads me inexorably to the conclusion that their financial circumstances are difficult.

6. Insofar as the father and the paternal grandmother are concerned, I also draw the obvious conclusion that they would suffer financial hardship if either of them had to bear a proportion of the costs of the Independent Children’s Lawyer.

7. For those reasons the application made by the Independent Children’s Lawyer is dismissed. The application is dismissed as against the mother by reason of her receiving legal aid, as required by s 117(4)(a) of the Act. The application is dismissed as against the father and the paternal grandmother because of their financial hardship, as required by s 117(4)(b) of the Act.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  4 December 2009