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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fontain & Pretre (No 3)

Details

AGLC: Fontain & Pretre (No 3) [2022] FedCFamC1F 394
Case: [2022] FedCFamC1F 394
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Fontain, the Applicant, and Mr Pretre, the Respondent, were involved in a family law matter that required the appointment of an Independent Children’s Lawyer (ICL). The primary dispute centred around the costs incurred by the ICL during the proceedings, with the ICL seeking a costs order against both parties. Ms Fontain submitted to the court's order, while Mr Pretre opposed the application for costs against him.

The court was required to determine whether it was appropriate to make a costs order against the parties and, if so, what proportion of the ICL's costs each party should bear. The court had to consider the statutory provisions of the Family Law Act 1975 (Cth), particularly section 117, which governs costs in family law proceedings. The court also had to weigh the financial circumstances of the parties, their conduct during the proceedings, and the importance of the ICL's role in ensuring the best interests of the children.

Justice Altobelli, after considering the statutory provisions and the case law, found that the ICL's role was crucial in the proceedings. The court acknowledged that while Mr Pretre was unsuccessful in his application for specific parenting orders, his concerns about the risks to the children from the mother's relationship were substantiated. Given the complexity and the necessity of the ICL's involvement, the court deemed it appropriate to make a costs order. However, the court decided to apportion the costs in a way that reflected the father's limited financial capacity while still recognising the importance of the ICL's role. Consequently, the court ordered Ms Fontain to pay $8,292.88 and Mr Pretre to pay $4,311.44, being their respective shares of the ICL's costs.

The court's decision was based on a careful consideration of the statutory framework, the financial circumstances of the parties, and the significant role played by the ICL. The court's order ensures that the parties contribute to the costs of the ICL while also taking into account the father's financial limitations.

Orders