Fontain & Pretre (No 3)
[2022] FedCFamC1F 394
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fontain & Pretre (No 3) [2022] FedCFamC1F 394
File number(s): SYC 5143 of 2018 Judgment of: ALTOBELLI J Date of judgment: 26 May 2022 Catchwords: FAMILY LAW – COSTS – Application for costs by the Independent Children’s Lawyer – Where the mother files submitting notice – Where the father opposes the costs application against him – Where application is granted but for the father’s share of the Independent Children’s Lawyer costs at a lesser sum. Legislation: Family Law Act 1975 (Cth) s 117 Division: Division 1 First Instance Number of paragraphs: 6 Date of last submission/s: 26 May 2022 Date of hearing: 26 May 2022 Place: Sydney The Applicant: No appearance required The Respondent: Appeared in person Solicitor for the Independent Children's Lawyer: Ms Carroll ORDERS
SYC 5143 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FONTAIN
Applicant
AND: MR PRETRE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
26 MAY 2022
THE COURT ORDERS THAT:
1.Within three months of the date of these orders the Applicant is to pay to Legal Aid NSW the sum of $8,292.88 being her share of the Independent Children’s Lawyer.
2.Within three months of the date of these orders the Respondent is to pay to Legal Aid NSW the sum of $4,311.44 being his share of the Independent Children’s Lawyer.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Fontain & Pretre has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
Following final judgment having been delivered in this matter, the Independent Children’s Lawyer (“the ICL”) makes an application for costs, as is standard practice for ICLs. The sum sought against the Applicant mother, Ms Fontain, (“the mother”) is $8292,88 and the sum sought from the Respondent father, Mr Pretre (“the father”) is $8,622.88. This matter was complex and the involvement of the ICL was absolutely essential, and the contribution made was very significant.
The mother sought parenting orders that were plausible and reflected the status quo. However, during the final hearing the mother’s stance was to maintain a relationship which was clearly inappropriate and dangerous for her children. Such was the paradox of the mother’s case. There was also paradox in the father’s case. He sought parenting orders that were difficult and probably unlikely. However, it was the father who raised the risk issues which were found by the Court to be profoundly correct. But for the fact that the father had raised those issues, it is quite likely that the Court would not have been aware of the risk to the children as a result of the relationship that the mother had formed at the time.
This is a case with paradoxes in both the mother and father’s cases. Nonetheless, the submissions made by the Independent Children’s Lawyer in her case outline documents filed 24 May 2022 are compelling and I accept the contentions therein. I incorporate the terms of the contentions into my ex tempore reasons, and reproduce them below:
1.S117(1) of the Family Law Act 1975 (the Act) provides that subject to certain subsections and sections each party in proceedings pursuant to the Family Law Act shall bear their own costs.
2.However, this does not apply to the Independent Children's Lawyers as s117(3) of the Act provides that in proceedings where an Independent Children's Lawyer has been appointed then the Court may make an order under s117(2) as to costs in such proportion as the Court considers just.
3.S117(4) of the Act states that in proceedings in which an Independent Children's Lawyer has been appointed, if a party to the proceedings received legal aid or if a Court considers that a party to a proceeding would suffer financial hardship to bear a proportion of the Independent Children's Lawyers costs then the Court must not make an Order under s117(2).
4.In considering whether or not to make an order for costs pursuant to s117(2) the Court shall have regard to the matters contained in s117{2A) as follows:-
a.Financial circumstances of each of the parties to the proceedings - It does not appear that either party have filed a financial statement in this matter since about August 2020 therefore the Court has no recent evidence before it of their respective financial circumstances. The Court can take note however that the mother was represented by Mr Lloyd SC representing her at the final hearing of this matter.
b.Either party in receipt of a grant of legal aid - neither party in this matter was in receipt of a grant of Legal Aid.
c.Conduct of the parties in the proceedings - this was a very difficult matter with some serious allegations raised against both parents. In those circumstances it is respectfully suggested that there can be no criticism of either party's conduct in these proceedings;
d.Whether the proceedings were necessitated by failure to comply with previous orders – no applicable
e.Whether one party has been wholly unsuccessful - it could be contended that the father was wholly unsuccessful in his application to the Court. It is noted that His Honour, at paragraph 117 of the Judgment recognised that the Orders that the father sought at the final hearing were unrealistic.
f.Written offers – no applicable.
5.His Honour, Deputy Chief Justice McClelland in the matter of Arnet & Arnet (2021] FamCA139 considered the matter of the Independent Children's Lawyers costs. At paragraph 23 of the Judgment His Honour said:-
"/n circumstances where both parties where legally represented throughout the proceedings, I am not satisfied that the financial circumstances of the parties is such that it would be inappropriate or unfair for the parties to bear the costs of the /CL. In any event, in Malloy & Stopford Malloy (2021] FamCAFC 23, the Full Court at (14], citing Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; Mallory & Mallory (2020] FamCAFC 62 at [9], noted that "impecuniosity is not a bar to a costs order": see also Cross & Beaumont (2008] FamCAFC 68; (2008) 39 Fam LR 389 at 402,(60]."
6.His Honour further, at paragraph 25 of his Judgment restated the role of the ICL in the context of a costs Application in proceedings before the·High Court of Australia in CDJ v VAJ (No 2) (1998) 197 CLR 172.
"Specifically, at (11], Kirby J said:
The children's representative has a duty to "act in an independent and unfettered way in the best interests of the child". This duty carries over to an appeal. The interests of the children and their welfare is of concern to the public.
Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this court."
7.In the Judgments His Honour also had regard to s117(5) of the Act and he took the view at paragraph 28 of his Judgment:-
''Accordingly, it is my view that the /CL should be presumed to be unfunded and, having regard to authority, in those circumstances, the Court is generally inclined to Order litigants to contribute to the /CL 's costs: see Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma (2013] FamCA 566."
8.Accordingly, the Independent Children's Lawyers seeks costs in accordance with the proposed minute of orders sought.
(As per the original)
I am particularly mindful of the comments made by McClelland DCJ concerning Independent Children’s Lawyers’ costs, as set out in the case outline document. The mother has filed a submitting notice which, in effect, means that for all practical purposes, the mother does not wish to be heard, and will submit to any order of the Court.
The focus therefore turns to the father. The father has made a number of submissions. There are two significant submissions that influence me. The first is that he submits he is impecunious. That is to say that he does not have money to meet such a costs order. The law is quite clear: mere impecuniosity is not a reason not to make a costs order if a costs order is otherwise proper. The second is that he submits that it was he who raised the issue of the risk to the children from the mother’s relationship and that risk was vindicated. While the father was wholly unsuccessful insofar as he sought the parenting orders that he did, he was certainly not unsuccessful as regards the issues that he raised pertaining to the risks of the children.
In these circumstances, I am still very mindful of the important public role that the ICL plays in these very difficult cases, such as this one. I am mindful that, on balance, having regard to the matters set out in s 117 of the Family Law Act 1975 (Cth) and the contentions made, that a costs order should still be made, but not in the total amount sought. The mother is to pay $8.292.88 being her share of the ICL costs and the father is to pay $4,311.44 being his share of the ICL costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 26 May 2022
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