HUGH & SAWER (APPEARANCE ELECTRONICALLY OF INDEPENDENT CHILDREN’S LAWYER)

[2010] FamCA 452

FAMILY COURT OF AUSTRALIA

HUGH & SAWER (APPEARANCE ELECTRONICALLY OF INDEPENDENT CHILDREN’S LAWYER) [2010] FamCA 452

FAMILY LAW – CHILDREN – procedural application – request by independent children’s lawyer to appear electronically –  safety concerns in court where the father has made a complaint of assault against the independent children’s lawyer – costs to Legal Aid Commission – request allowed

APPLICANT: Ms Hugh

RESPONDENT: Mr Sawer

INDEPENDENT CHILDREN’S LAWYER: Mr D. Walker

FILE NUMBER: LNC 511 of 2008

DATE DELIVERED: 17 May 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 17 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lewis

SOLICITOR FOR THE APPLICANT: Levis Stace & Cooper

THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER David Walker & Co

Orders

1. That the independent children’s lawyer be permitted to appear at tomorrow’s hearing at 9.00 am by electronic means and by provision of a landline telephone number for that purpose.

2. That in the even that the applicant father wishes to rely on any further material he serve same on the mother and independent children’s lawyer by facsimile or email by 5.30 pm this day.

3. That I reserve until tomorrow, 18 May 2010, any objections of the mother and the independent children’s lawyer to reliance being placed by the father on the material.

4. That the father pay the costs of the independent children’s lawyer of and incidental to today fixed in the sum of $275 such costs to be paid by 16 July 2010.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: LNC 511 of 2008

MS HUGH

Applicant

And

MR SAWER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(ex tempore)

1. These reasons concern an application by the independent children’s lawyer (“ICL”) to attend an interim hearing electronically.

2. On 12 May 2010 I made arrangements for the hearing by video‑link of an application filed by the father on 5 May 2010 for the removal of the independent children’s lawyer.  The arrangements were made late in the sitting day at approximately 4.45 pm.  When I ascertained that there was no available court in Launceston at which the matter could be taken at 9 am on any day this week, I was informed that a conference room with a large table that accommodated video conferencing facilities was available.  On that basis the hearing of the father’s application to remove the independent children’s lawyer was set down for tomorrow at 9 am, to be conducted in a conference room. 

3. On 13 May 2010 the ICL filed a request to attend tomorrow’s hearing electronically; that is, by telephone.  He submits that the relevant issues are the expense to the Legal Aid Commission of travel time and mileage, as well as security issues concerning the Launceston court and use of the conference room.  The ICL says that he will make himself available by telephone at 9 am tomorrow on a landline. 

4. The mother has no objection to that course.

5. The father does oppose the ICL’s request. 

6. To allow the father the opportunity to comprehensively address the ICL’s application I asked the ICL to give further details.  I was informed that the cost to Legal Aid in Tasmania would be approximately $443 in addition to his appearance fee, which is made up of some $312 travelling time and $90 mileage plus GST.  The ICL correctly says that the hearing has been allocated one hour and it is also the case that I indicated that the father, as applicant, should have half an hour and the other two parties could have up to 15 minutes. 

7. The second issue referred to by the ICL is in relation to security.  He says that the conference room is small.  Last week Madam Court Officer said that the table is adequate to seat three people but I do not know the size of the room and I do not wish to commit anyone who now says that the room is inadequate for the use to be placed in the room.  The ICL says that he would have some lack of comfort about security issues because there is only one security guard.  He says that following the hearing last week there was an incident involving himself and the father in which he was threatened by the father and said that he felt threatened.

8. In response, the father says that costs have never been an issue before; that there have been numerous applications in Launceston and costs have never been raised.  In the last two weeks costs have been raised on a number of appearances and I do not think one application for costs to which the father has had to respond has not had as an ingredient of it some criticism about the mother or the ICL claiming (and recovering) travel expenses to get to court. 

9. The father says that the application is important and, with that, I certainly agree.  He says that it is important for the ICL, a proposition with which I also agree.  It is an application to remove Mr Walker in his capacity as an ICL.  The father says that there is an affidavit that is being filed contemporaneously with this mention (which would be difficult because it is now 4:45 p.m. and I expect that the Launceston Registry closed its filing section at 4:15 p.m.) that he wants to hand to the ICL tomorrow.  The father also says that he has put Mr Walker on notice to produce certain documents. 

10. Those matters do not seem insurmountable.  The father has had since 5 May 2010 to file his evidence in support of the application and has already filed an affidavit.  Any material upon which he relies will not be taken into account unless it is in the hands of the other parties at the commencement of tomorrow’s hearing. The father has facilities by way of scanning and email and facsimile available to him.  In relation to documents sought to be produced, adequate notice should be given of those to permit it to occur. 

11. The more troubling aspect is the issue of security.  I made clear to the father that I did not want him to describe any incident in which he was involved and that I would not ask him to respond to the allegation that he made a threat.  The purpose for this is abundantly clear:  It is that no one in a court hearing in the context of this application ought to be in a position where they could potentially incriminate themselves without having received legal advice. 

12. Accordingly, I note the details given to me by the ICL of being threatened but do not seek that the father respond.  I do, however, have regard to the father’s allegation that last week he was assaulted by the ICL, Mr Walker.  In those circumstances, it would be wholly inappropriate to place the person, Mr Walker, standing accused of a physical or verbal assault (which is not clear at this stage) for the hearing of an application in a potentially confined space with the father.  I am not aware of the dimensions or size of the room.  The father completed his submissions by saying that there was no reason that the ICL could not be there.  That does not accord with the submissions that I have received considering the father’s allegation of assault against the ICL. 

13. I note that, under Division 12A, proceedings concerning children are to be conducted with as little formality and legal technicality and form as possible.  Very significantly, pursuant to section 69ZQ(1)(e), in giving effect to the principles in the section, the court is to make appropriate use of technology.  The hearing itself is going to be by video-link because I am in the Melbourne Registry.  Appropriate use, in my view, can be made of further technology, enabling the ICL to appear by telephone.

14. I will therefore accede to the application but impose certain restrictions on the reliance on documents at a time when the representatives for the parties will not be in the same room. 

15. I have also made orders allowing the mother’s representative to appear by telephone, subsequent to hearing counsel for the mother’s oral submissions. Those reasons have been separately published.

16. The ICL seeks costs against the father of $275.

17. Section 117(1) contains the general rule that each party to proceedings under the Act bear his or her own costs, in this case the independent children’s lawyer says that there are circumstances which justify an order for costs being made.  The father opposes the making of such an order. 

18. Section 117 (2)(a), which contains a number of factors which I must consider when determining whether a costs order is justified.  It has been observed, and I agree, that in many cases there will be an outstanding feature that makes an order for costs inappropriate.  A feature which so dominates the scene that it can outweigh any of the other section 117 (2)(a) considerations.

19. I asked the father to address me on his opposition to an order for costs.  He said that physical threats are of no consequence to him, but that he takes applications for costs and threats of an application being made for costs very seriously.  He said that he perceives them as an attack on himself and on his children.  All orders are serious. 

20. I take into account the conduct of the parties to the proceeding.  The father correctly points out that this application is made very late, it was only made known to me yesterday afternoon, and I arranged for the matter to be listed today, and the hearing with which it is concerned is listed for 9 am tomorrow.  However, one of the bases for the application is an incident which occurred outside court last week (12 May 2010) and, whilst there are disparate accounts, it is abundantly clear that the father now accuses the independent children’s lawyer of criminal assault.  This was an event that did not occur until after the court rose on 12 May 2010.

21. The father’s other point is that Mr Walker was in court and agreed to attend the Launceston registry and have a court hearing convened in a conference room by way of video conferencing facilities and, therefore, he must be bound by that “undertaking.”  First, no undertaking was given, and I would caution the father about making an allegation that a practitioner has breached an undertaking.  Second, the arrangements made during the hearing on 12 May 2010 were superseded by events happening immediately after the hearing.

22. There are no earlier orders with which one party has failed to comply.  I take in there is no proceedings in which one party has been wholly unsuccessful – well, yes there are.  Mr Walker has been wholly successful in his application to attend by electronic means, the father has been wholly unsuccessful in opposing that.  I am not addressed by any of the parties as to an offer which is relevant.

23. Mr Walker seeks costs in the sum of $275.  The matter was listed for 4:30 pm, it is now 5:20 pm.  There should be allowance made for the drawing and engrossment of the application to appear by electronic means, and then the scale for an hourly attendance is approximately $190.  It seems to me that the costs as claimed are very reasonable.

24. I take into account, pursuant to section 117 (4) that the court ought not order a party to pay the costs of an independent children’s lawyer, if to do so would mean that the party who has to pay costs would suffer financial hardship.  Hardship is a concept which has been frequently addressed in the context of section 44(4) in terms of the institution of financial proceedings under Part VIII.  In relation to hardship under section 117(4), I note that it has been considered by this court at first instance by Warnick J in the matter of C & C [2006] FamCA 258; and by Coleman J in the matter of Doyle & Lombardi and Anor  [2009] FamCA 201. In that latter instance, Coleman J was sitting as the full court. I adopt their Honour’s conclusion that hardship is to be assessed in light of the fact that the person who is under an application to pay costs has been wholly unsuccessful, and that the independent children’s lawyer should not be without some compensation for that.

25. I note that in relation to the sum of $275, the father referred to that as “insignificant”.  His description also informs my assessment that he will not suffer hardship by having to pay it, and I will require him to pay it.  The father sought no time to pay.  The costs should be paid forthwith.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date: 31 May 2010