Antonio and Grobb and Anor

[2009] FamCA 947

FAMILY COURT OF AUSTRALIA

ANTONIO & GROBB AND ANOR [2009] FamCA 947

FAMILY LAW - COSTS - Application by the Independent Children’s Lawyer for costs against each of the parties to the proceedings - Application dismissed

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Antonio

FIRST RESPONDENT: Ms Grobb

SECOND RESPONDENT: Ms Pritchard

INDEPENDENT CHILDREN’S LAWYER: Ms Moran

FILE NUMBER: NCC 204 of 2008

DATE DELIVERED: 8 September 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 8 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly

SOLICITOR FOR THE APPLICANT: Hunter Valley Law Centre Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Bates

SOLICITOR FOR THE RESPONDENT: Whitelaw McDonald & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Moran, Coast Law

Orders

1. With the consent of the parties and the Independent Children’s Lawyer it is ordered in accordance with the Terms of Settlement signed by the parties and/or their legal representatives on 8 September 2009:

   1.1All previous parenting orders in relation to the child …, born … March 2000, be discharged.

   1.2Ms Pritchard shall be joined as a Second Respondent to these proceedings.

1.3The parties have equal shared parental responsibility for the child.

1.4The child live with the Mother.

1.5The child spend time with the Father as follows:

a.From the date of these orders until and including 20 December 2009 for 2 hours on each alternate Sunday;

b.On 25 December 2009 from 9am until 2pm;

c.From 10 January 2010 until the child’s 10^th birthday each alternate Sunday from 9am until 5pm;

d.From the child’s 10^th birthday until the child’s 11^th birthday:

i.Each alternate weekend from 5pm Friday until 5pm  on the following Sunday;

ii.On 25 December 2010 from 9am until 2pm;

iii.For one week in the Christmas 2010 school holidays as agreed but failing agreement from New Years Day for one week;

iv.On Father’s Day from 9am to 5pm.

e.From the child’s 11^th birthday:

i.During the school term, each alternate weekend from 5pm Friday until 5pm on the following Sunday;

ii.Half of all school holidays being the first half in odd numbered years and the second half in even numbered years;

iii.In even numbered years from 2pm Christmas Day until 2pm Boxing Day;

iv.On Father’s Day from 9am to 5pm.

1.6On a without admissions basis and without prejudice to the Fathers position, the time the child spend with the Father shall occur as follows:

a.For the purposes of the time provided in Order 1.5(a) above, such time shall occur at the Relationships Australia Contact Centre at the times designated and facilitated by Relationships Australia;

b.For the purposes of the times provided in 1.5(b), 1.5(c) and 1.5(d), such time shall be conditional upon the Second Respondent supervising the child’s time with the Father and this order is discharged as and from the child’s 11^th birthday.

1.7For the purposes of implementing the child’s time with the Father:

a.In relation to the times provided for in Orders 1.5(b), 1.5(c) and 1.5(d) the Mother shall deliver the child to the Second Respondent at McDonalds at A at the commencement of the time and the Second Respondent shall return the child at the said location at the conclusion of time and the Father is restrained from attending any of these changeovers.

b.In relation to the time provided for in Order 1.5(e) above, the Mother or her nominee is to deliver the child to the Father, or his nominee, to McDonalds at A at the commencement of the time and the Father, or his nominee, shall return the child at the said location at the conclusion of time spent.

1.8The child shall communicate with the Father by telephone at all reasonable times by agreement and failing agreement each Tuesday and Thursday between the hours of 6pm and 7pm with such phone call to be initiated by the Father and that the Mother facilitate the receipt of the call by the child by ensuring that the child is available to speak with the Father.

1.9From the date of these orders until the child’s 11^th birthday communication relating to the child spending time with the Father be conducted between the Mother and the Second Respondent.

1.10Each of the parties within seven days of the date of these orders, advise all other parties of their current residential address and telephone numbers and keep each other advised as to any change of address and/or telephone number.

1.11The time the child spends with the Father is suspended as follows:

a.Upon the child turning 11 years of age, in odd numbered years from 2pm Christmas Day until 2pm Boxing Day and the child shall live with the Mother during such time;

b.From 9am to 5pm on Mother’s Day and the child shall live with the Mother during such time.

1.12The parents are restrained from denigrating each other, or permitting the child to remain in the hearing of any third person who may denigrate the other parents.

1.13Each of the parents are restrained from administering corporal punishment to the child, or allowing any other person to do so.

1.14That the Mother do all acts and things to cause the children Y and E to receive and/or complete counseling in relation to the non-denigration of the Father and to assist them in being positive as to the relationship between the child and the Father.

1.15That the Father do all acts and things to complete his course of counseling at Interrelate in relation to his physical interaction with the child and parenting.

1.16That the Independent Children’s Lawyer be at liberty to provide the Single Expert report to each of the following:

a.         The counselor providing counseling to Y and B;

b.         Interrelate;

c.         The Mothers psychiatrist Dr. B.

1.17Each party is hereby restrained from removing or causing or allowing the child to be removed from the Commonwealth of Australia.

1.18The Father and his servants and agents are restrained from taking or sending or attempting to take or send the child from Australia.

a.The Marshal and all offices of the Australian Federal Police and the police forces of the States and Territories are requested and authorized to give effect to these orders.

b.The Registry Manager must immediately notify the Marshal and the Australian Federal Police Family Law Team at Sydney of these orders by telephone and must as soon as possible provide a copy of these orders to the Marshal, the Australian Federal Police and the State Police.

1.19That the Court request that the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing the removal of the child from Australia in breach of these orders.

1.20That the mother do all acts and things and execute all documents so as to authorise and direct any medical practitioner upon whom the child attends from time to time to supply such information and documents to the father as may be requested by him and further that the mother inform the father within seven days of all medical appointments made on behalf of the child.

1.21That the mother do all acts and things and execute all document so as to authorise and direct each of the child's schools to provide copies of all documents to the father that have been made available to the mother, including but not limited to school reports, school photos, notification of events and functions and notification of parent teacher nights.

1.22That each party must ensure that the other parent is kept informed as soon as is reasonably practicable upon any of the following occurring:-

a.any medical condition or serious illness suffered by the child;

b.any medication that has been prescribed for the child;

c.any specialist medical appointment with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;

d.any other matter of relevance to the welfare of the child.

1. That pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. The application for costs made by the Independent Children’s Lawyer is dismissed.

NOTATIONS

A.The applicant mother will provide a typescript of the Terms of Settlement within seven days.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 204 of 2008

MR ANTONIO

Applicant

And

MS GROBB

First Respondent

and

MS PRITCHARD

Second Respondent

and

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

1. The Independent Children’s Lawyer makes an application, as is customary, for an order for costs as against each of the parties to the proceedings. I have listened to the submissions of the parties and the Independent Children’s Lawyer. I have considered the criteria set out within section 117 of the Family Law Act.

2. In summary, the financial circumstances of the parties are parlous. 

3. The father is a disability pensioner.  He has not been able to fund his legal representation privately.  His solicitor and barrister have appeared in these proceedings in the hope and, perhaps, expectation of the ultimate grant of legal aid in favour of the father. 

4. So far as the mother is concerned, her employment is permanent part-time.  Her income is modest.  She has three children to support, essentially on her own.  The child support that she receives for the child, the subject of these proceedings, from the father is nominal by reason of the father’s receipt of income in the form of a disability pension.  The child support that she receives from the father of her eldest two children is also modest.  She has incurred considerable expense in engaging her lawyers to represent her interests in these proceedings. 

5. I am satisfied, on what I have read and heard, that the parties have conducted themselves sensibly in the litigation, and that is no better exemplified than by the manner in which they have brought the proceedings to a conclusion today by reason of a negotiated settlement. 

6. In the circumstances, I do not think it appropriate to make an order for costs against either party, and the application for costs by the Independent Children’s Lawyer is dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  2 October 2009