Hartford & Ansilda (No. 3)

[2008] FamCA 602

FAMILY COURT OF AUSTRALIA

HARTFORD & ANSILDA (NO. 3) [2008] FamCA 602

FAMILY LAW  -  COSTS  -  late application for adjournment

Family Law Act 1975 (Cth) s 117, 117(2A)

FATHER: Mr Hartford

MOTHER: Ms Ansilda

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10686 of 2007

DATE DELIVERED: 21 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 21 July 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Mr I.F. Mawson SC
with Mr M. Wood

SOLICITOR FOR THE FATHER: Gillian Coote Family Law

THE MOTHER: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms. M. Vohra

INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. That the competing applications for final parenting orders in respect of the child … born … December, 2006, and the father’s application for the mother to be dealt with for contravention of orders, be adjourned for trial on 25 August, 2008.

2. That the mother pay towards the father’s costs thrown away this day the sum of $7,000, and such costs be paid within three months hereof. 

3. That the costs of counsel for the independent children’s lawyer be fixed at $1,760 and reserved. 

4. That the Court cause a sealed copy of these orders and the reasons for judgment, to be sent to :

   (a)the registrar of the Children’s Court, Melbourne;  and

   (b)the registrar of the Magistrates’ Court of Victoria at the Moorabbin Justice Centre;

   with a request that they be brought to the attention of a court before whom an application for an intervention order is made which concerns (in any capacity) the mother, father or the child. 

5. That the mother file and serve any affidavits on which she intends to rely by 18 August, 2008. 

6. That prior to the adjourned date Mr. V (who wrote the family report released to the parties herein) be permitted to read all reports prepared by Dr. E which are filed herein and all affidavits filed by or on behalf of a party since preparation of his family report. 

7. That the reasons for judgment this day be transcribed and copies made available to the parties.

8. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.

AND THE COURT NOTES

1. The solicitor for the mother then on the record filed a notice of ceasing to act on 10 July, 2008.

2. The mother advised the court that on or about 17 July, 2008 she made an application for legal aid which she believes will be determined within a week. 

3. The mother advised that if legal aid is not granted she intends to approach family and friends to enable her to retain a solicitor. 

1. The court was advised that an application brought by the mother in the Children’s Court at Melbourne seeking an intervention order in respect of the child has been adjourned to 25 August, 2008 and that applications brought by a member or members of Victoria Police seeking intervention orders, respectively, in respect of the mother and father has be adjourned to the Magistrates’ Court of Victoria, sitting at the Moorabbin Justice Centre, on 22 August, 2008. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 10686 of 2007

MR HARTFORD

Father

And

MS ANSILDA

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Earlier today I granted an application for an adjournment, made by the mother.  The father seeks that she pay the costs thrown away.  The ICL asks that her costs be reserved. 

2. The general rule in this court, which is set out in s.117 of the Family Law Act 1975, is that parties to litigation pay their own costs. There is, however, provision for the court to make such costs orders as it finds just and proper. In deciding what orders to make, it must take into account the matters set out in s.117(2A) of the Act, one of which is the financial circumstances of the parties.

3. The mother has told me that her financial circumstances are not good.  She receives child support from the fathers of two of her children.  She says that she is not the registered proprietor of the home in which she and the children live.  The court cannot conduct an inquiry into her financial circumstances.  There is some reference to it in the material filed on her behalf by the two firms who have acted for her in the past. 

4. The husband is engaged in property development.

5. Financial circumstances are not the only matter the court has to take into account.  It must take into account the conduct of the parties in the proceedings and whether the proceedings were necessitated by the failure of a party to comply with previous orders.  It can also take account of any other matter it considers relevant.

6. This matter was given priority for a very good reason.  First, the child’s future needs to be determined.  The court needs to decide whether she is going to live with her mother or her father and determine the time she is to spend with the parent with whom she does not primarily live.  To do that it must make findings on numerous facts in issue, one of which is the mother’s allegation that the father has sexually abused the child.

7. Second, the case has been a fertile ground for litigation, and it is not good for children to have their parents embroiled in litigation.  I appreciate it is stressful on parents too, but their stress impacts on their children.  The Children’s Court and the Magistrates’ Court have adjourned proceedings, pending the determination of this trial. 

8. The court has done everything it can to get this matter on for trial.  The withdrawal of instructions by the mother from her former solicitors was advised at a pre‑hearing conference on 9 July.  The solicitor who attended that conference, Mr Woolf, filed his notice of ceasing to act on 10 July 2008.  It is now 21 July.  The application for an adjournment was only made on 17 July, being last Thursday.  It seems the application for legal aid was not filed until that Thursday.  In my view, it was proper for the other parties to the litigation to proceed on the basis the case would proceed today. 

9. I add that although represented until 10 July, the mother has not complied with directions requiring her to file affidavits.

10. In respect of the independent children's lawyer, I will do what is sought.  The independent children's lawyer's counsel's costs will be fixed at $1,760 and reserved. 

11. That is not the application made by the father;  who seeks his costs.  I find substance in his application.  Counsel's fees alone are $8,500, and an instructing solicitor is present.  I propose to round the figure down to $7,000, and order the mother contribute that sum towards the father’s costs of this day.  There will be a stay of three months. 

I certify that the preceding
11 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.