Cross v Beaumont

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Golly & Wolberink has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This matter comes before me for determination of an application for costs filed by the Independent Children's Lawyer ("ICL") on 3 September 2025.
2. The father in these proceedings is Mr Golly (born 1979) aged 45. He is presently employed as a labourer on a casual basis by SS Business.
3. The mother is Ms Wolberink (born 1981) aged 43. She works casually as a self-employed carer for clients with disabilities.
4. By way of brief background, the substantive parenting proceedings commenced in 2019 and an and order was made for an ICL to represent the children on 24 August 2021.
5. The matter proceeded to a final hearing, which for various reasons, proceeded across three sittings and 14 days, concluding on 3 November 2023.
6. Final judgement was delivered in this matter on 20 August 2025 ("the final judgment") (Golly & Wolberink (No 3) [2025] FedCFamC1F 561). Orders were made for the children to live with the mother and spend time with the father each alternate weekend. These reasons should be read with those reasons.
7. The ICL wrote to the parties on 25 August 2025 inviting a consent position in respect to their costs.
8. The ICL seeks that $17,975.16 be paid by each party, representing one half-share of the ICL's costs.
9. The parties jointly wrote to the court on 29 September 2025 requesting that the application be dealt with on the papers. Noting this was a consent position, and to avoid the parties incurring any further unnecessary costs, the court agreed to determine the application on the papers.
10. The parties both seek that the application of the ICL be dismissed in circumstances where they say that being required to pay a half-share of the ICL's costs would cause them significant financial hardship. The ICL disputes this contention and contends that it would be just for the court to make a costs order.

(1) Application in a Proceeding filed 3 September 2025

(2) Affidavit of the ICL filed 3 September 2025

(3) Case Outline filed 1 October 2025

(4) Various prior financial statements and costs notices' of the parties

(5) ICL schedule of costs filed 3 September 2025

(6) Property Orders dated 3 April 2023

(7) Reasons for Judgment dated 20 August 2025

(1) Response to an Application in a Proceeding filed 15 September 2025

(2) Affidavit of the father filed 15 September 2025

(3) Financial Statement filed 15 September 2025

(4) Case Summary filed 15 September 2025

(1) Response to an Application in a Proceeding filed 24 September 2025

(2) Affidavit of the mother filed 24 September 2025

(3) Financial Statement filed 24 September 2025

(4) Case Outline filed 24 September 2025

1. The court has broad powers to make various orders for costs if it considers such an order is just pursuant to s 114UB of the Family Law Act 1975 (Cth) ("the Act").
2. Section 114UC of the Act allows the court, subject to certain considerations, to make such orders as to the costs of the Independent Children's Lawyer as it considers just if there are circumstances which justify it doing so.
3. Section 114UC(2) provides that the court must not make a costs order in relation to the costs of the Independent Children's Lawyer;

(1) In relation to a party in receipt of legal aid, or

(2) If the court considers that a party would suffer financial hardship if they were required to contribute towards the costs of the Independent Children's Lawyer.

1. Further, the court is required to have regard to the matters set out in s 114UB(3) of the Act and give the weight it considers appropriate to any relevant factor.
2. Neither party was legally aided during the proceedings, though both provide evidence that their legal fees were largely paid for the property settlement and by various loans or gifts from family members. I do note that legal aid approved the mother's waiver for the payment of the ICL's initial contribution, but that the father paid this figure.
3. The mother gives evidence that her current average weekly income is approximately $1,394, which includes various Centrelink payments. She says her expenditure presently exceeds her income, noting she is the primary carer of the parties three children. She has minimal assets.
4. The father says his weekly income is approximately $1469. He has minimal assets, and his debts exceed these, on his evidence.
5. The ICL submits that both parties, having chosen to privately fund litigation for six years cannot reasonably argue now that their contribution towards the ICL's costs will cause significant financial hardship. The ICL draws to the courts attention the property settlement figures received by both parties and the significant legal fees that both have been required to pay.
6. I note that the length of the proceedings was contributed to by the parties' conduct as set out in the primary judgement. Further, I made overall findings at [17] of the final judgment that both parents were not witnesses of credit.
7. The ICL submits that the father was wholly unsuccessful in respect to five out of six of his final proposals provided at the conclusion of trial and that the mother was wholly unsuccessful in respect of her proposal for international relocation and her orders regarding the father's time with the children.
8. The ICL also drew attention to [29] of my final judgment where it was noted that:
   1. ...the conduct of each party certainly appears to justify such a costs orders, however, the parties will be given an opportunity to be heard on this issue for a full determination...
9. I do note that the sum of $17,975.16 sought by the ICL from each party is not an insignificant amount of money. It represents the substantial and significant role the ICL played in these proceedings in assisting the court to determine what orders were in the best interests of the subject children.
10. Impecuniosity is not in and of itself a barrier to the making of a costs order.[1]
11. However, whilst my preference would be to impose full costs orders on each party as a disincentive to future parties engaging in the kind of conduct I found both of these parties engaged, in, on balance I am satisfied that on the evidence before me, requiring the parties to pay the ICL's costs would cause both parties significant hardship.
12. After reviewing all the material, I do not consider the way the parties chose to run their case to be so egregious to justify payment of a costs order which would impose that hardship which would ultimately be substantially borne by the three children who have suffered through this litigation.
13. Accordingly, I dismiss the application for costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.

[1] Cross v Beaumont [2008] FamCAFC 68; (2008) 39 Fam LR 389 at [60]; Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; Mallory & Mallory [2020] FamCAFC 62 at [9].