Kotnik & Kotnik [2025] FedCFamC1F 594 (28 August 2025)

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).

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 1 August 2025, the Court made, by consent, final parenting and financial orders which dealt with all applications before the Court with the exception of an application by the Independent Children's Lawyer ("the ICL") for their costs.
2. In that respect, at the request of the parties, orders were made for the ICL to file written submissions as to costs by 8 August 2025 with each of the parties to file written submissions in reply by 15 August 2025.
3. In accordance with the directions, the ICL filed and served their submissions as to costs by 8 August 2025. Neither party has bothered to comply with the directions and accordingly the Court has proceeded to determine the matter based solely upon the ICL's submissions.
4. The ICL seeks an order that the applicant pay the ICL's costs in the sum of $165 and the respondent pay the ICL's costs in the sum of $1,650.
5. An application for costs is governed by the provisions of s 114UB of the Family Law Act 1975 (Cth) ("the Act") which provides a general rule that each party to the proceedings should bear their own costs. Pursuant to s 114UC of the Act, the Court may make such costs order as the Court considers just in relation to the costs of the ICL. Pursuant to s 114UB(2) the Court may, in its discretion, make such order as to costs as the circumstances justify having regard to the matters set out in s 114UB(3).
6. The ICL submits as follows:
   1. Legal Aid NSW expects that parties to proceedings in which an ICL is appointed each pay their proportionate share of $3,630 (including GST), being the anticipated costs and disbursements for work up to, but not including, the defended hearing of the matter.

1. As at the date of these submissions, the ICL is not aware of any payments by the Respondent on account of the ICL's costs.
2. There being two parties in the present proceedings, the ICL seeks an Order for costs fixed in the following sums: -

7.1. As against the Applicant, in the sum of $165.

7.2. As against the Respondent, in the sum of $1,650.

1. No one factor in the list of factors for determination pursuant to s 114UB(3) is determinative and the Court may give such weight as it considers relevant to any factor.
2. In Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at 130, the Full Court observed in relation to the predecessor to the section (which is in almost identical terms) the following:
   1. ... Nowhere in subsection 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection 2(A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
3. Addressing the matters under s 114UB (3) as are relevant, I find as follows.

(a) The financial circumstances of each party to the proceedings

1. Having regard to the applicant's Financial Statement filed 7 July 2025, the respondent's Financial Statement filed 14 July 2025, and the Working Joint Balance Sheet filed 22 July 2025, I am satisfied that each party's financial circumstances are such that the making of a costs order in the exceptionally modest amount sought would not cause either of them any financial hardship at all.

(b) Whether any party was in receipt of legal aid

1. Consistent with the submissions of the ICL, I observe that neither party is in receipt of legal aid.

1. In respect of the conduct of the parties, I accept the submissions of the ICL to the following effect:
   1. The parties have filed voluminous evidence in these proceedings, which the ICL has been obliged to read.
   2. The parties have caused numerous subpoenas to be issued.
   3. The ICL has caused Counsel to be retained. Counsel has expended time and effort in respect of that brief. Counsel is unable to claim for those costs.

(g) Any other matter the court considers relevant

1. I note the submissions of the ICL to the following effect:
   1. The costs sought by the ICL represent the bare minimum contribution expected of litigants on behalf of whose children an ICL is called to act. There can therefore be no suggestion that those costs are not proportional.
   2. The ICL is aware of no basis on which an Order for costs is, or could possibly, be opposed.
   3. There is a sound public policy rational for the making of a Costs order.
   4. The ICL service is a public service which provides a public good. The parties have benefited from that service and are reasonably expected to contribute to the ongoing operation of that service.
   5. As individuals with significant financial resources by any measure, but particularly when compared with many litigants in whose matter an ICL is appointed, the Court would not permit the parties to escape their civic duty and to therefore exploit the public purse.
   6. The parties are legally represented. The ICL would submit there is a likelihood costs incurred by the parties in respect of the preparation of submissions as to costs would exceed the quantum of the Orders sought.
2. I accept the force of those submissions.
3. I further note the provisions of s 95 of the Act and the overarching purpose of family law litigation which I am satisfied neither party has observed nor complied with. It is a disgrace that the applicant and respondent required the Court to make orders compelling the ICL to file written submissions as to costs only to have the applicant and respondent fail to comply with the very orders, they sought the Court make. The conduct of the applicant and respondent is to be deplored in that it is both discourteous and contemptuous.

1. I am satisfied that the circumstances justify that an order for costs should be made as sought by the ICL. Had the ICL sought an order for its costs on an indemnity basis, the Court would have given serious consideration to the making of such an order.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.