Hugot & Hugot
[2024] FedCFamC2F 109
•30 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hugot & Hugot [2024] FedCFamC2F 109
File number(s): PAC 590 of 2020 Judgment of: JUDGE STREET Date of judgment: 30 January 2024 Catchwords: FAMILY LAW - PARENTING – consensual outcome – no order as to costs Legislation: Family Law Act 1975 (Cth) Cases cited: Metrellis & Chase [2023] FedCFamC2F 1241 Division: Division 2 Family Law Number of paragraphs: 10 Date of hearing: 30 January 2024 Place: Sydney Counsel for the Applicant: Ms A Wallace Solicitor for the Applicant: Monardo Legal Counsel for the Respondent: Ms D Kaiti Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor Counsel for the Independent Children’s Lawyer: Ms I Ryan Independent Children’s Lawyer: JLM Family Lawyers Pty Ltd ORDERS
PAC 590 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HUGOT
Applicant
AND: MR HUGOT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
30 JANUARY 2024
BY CONSENT AND ON A FINAL BASIS, THE COURT ORDERS THAT:
1.All previous parenting orders are hereby be dismissed.
2.The mother shall have sole parental responsibility of the children X born 2009 and Y born 2012 (“the Children”).
3.Notwithstanding Order 2, the mother shall inform the father of any significant change to the children’s long-term care, welfare or development, including any medical or hospital procedures.
4.That the children shall live with the mother.
5.That the children shall spend time and communicate with their father as per their wishes:
(a)That for the purposes of this order the mother will facilitate the childrens wishes to spend time with their father.
6.That the father is at liberty to contact the children no more than three times per week at any reasonable time on the childrens number either by text message or telephone. The mother shall provide each of the children’s mobile numbers to the father forthwith, or as and when the children’s mobile numbers change from time to time.
7.The parents are hereby restrained from speaking about the other parent or a member of the other parents’ family or household in a derogatory or negative manner in the presence or hearing of the children or allowing any third party to do so.
8.Both parents are at liberty to obtain from the children’s schools all material usually available to parents. The mother shall provide details of the children’s schools to the father forthwith, or as and when the children’s school changes from time to time.
9.Should either of the children become seriously ill or be hospitalised, the parent with care of the children shall advise the other parent as soon as it is practical to do so including providing details of the child’s location, diagnosis and prognosis and keep the other parent informed at all reasonable times. The mother shall forthwith provide the names and details of such medical professionals upon whom the children attend from time to time.
10.Both parents are hereby authorised to obtain from any of the any of the children’s treating medical or allied health practitioners all information usually available to parents.
THE COURT ORDERS THAT:
11.Neither party is to engage in corporal or physical punishment of the Children or permit any other person to do so.
12.The ICL is discharged from these proceedings after these orders have been explained to the Children by the ICL.
13.No order as to costs in respect of the ICL.
14.No order as to costs in favour of the applicant against the respondent.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These proceedings have commenced on 6 February 2020 and involve parenting considerations in relation to X, born 2009 and Y, born 2012 (“the children”). The proceedings were listed to commence at 10 am today and were listed for three days. To the very great credit of both parties, there has been a consensual outcome where orders have been made by consent in respect of the parenting of the two children but for one matter to which the Court will return. The ability of both parents to achieve a consensual outcome shows a level of insight by both parents to prioritise the best interests of the children. It is greatly to the benefit of the parties and the children that the ongoing dispute has been resolved substantially by consent and the Court congratulates the parties in that regard.
The Court was satisfied that the proposed consent orders 1 to 10 in respect of the children were appropriate, having admitted into evidence the affidavits of the parties and received other exhibits in circumstances of a possibility of the matter proceeding as a contested hearing. The Court is satisfied that the orders 1 to 10 were in the best interests of the children. In relation to an issue raised in respect of a proposed order 11, the applicant mother (“the mother”) identified a concern in relation to the consumption of alcohol by the respondent father (“the father”) and identified a proposed order for a restraint of consuming alcohol 12 hours prior to seeing the children in his care. That is the type of order often made in respect of young children who are unable to communicate concerns to a parent.
The parenting orders in the present case are ones where the children are going to communicate and spend time with the father in accordance with their wishes. If the father is not in a fit and healthy state when the children are spending time with him, it will rapidly impact on the children’s willingness to spend time with the father. The ICL has also pointed out, there is a difficulty in a regime for enforcement of any such order in the circumstances of this case. More importantly, other than the concern expressed by the mother, there is no recent independent objective event that has occurred that would warrant the making of an order of the kind identified in proposed order 11.
The Court has taken into account the considerations required in terms of the two primary considerations and the additional considerations in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) and the principles in relation to ss 60B and 69ZN of the Act and the principles in as set out in Metrellis & Chase [2023] FedCFamC2F 1241 at [68] – [87], the Court is not persuaded that it is in the best interests of the children to make an order of the kind identified by the mother in the circumstances of this case and accordingly declined to make that order.
There was a contest in respect of costs of the ICL. The circumstances of the parties are not ones where the father has substantial liquid assets. The Court was told he has a very small amount in his bank account and the financial circumstances of the father are such, taking into account the considerations under s 117(2A), the Court was not persuaded that there were circumstances to justify the Court in making a costs order in favour of the ICL as against the father.
The mother also identified significant costs that she is carrying in relation to the two children, although she has real property. The position was identified that she does not have substantial liquid assets. It is the case that the ICL has played a very important role in these proceedings and the Court is very grateful for that input by the ICL, the counsel on behalf of the ICL. It is essential in contested parenting cases involving serious adverse allegations that one has the benefit of objective input through an ICL and the Court, in this case, is extremely grateful for the assistance it has received in respect of the proposed case outline and the tender bundle as well as the assistance given by the ICL to the parties in achieving a consensual outcome. Indeed, the Court has made an order that the ICL explain the orders prior to being discharged from the proceedings to the children given their ages.
Notwithstanding that very important role, the Court is not persuaded that there are circumstances that justify the Court in making an adverse costs order in favour of the ICL and accordingly the Court declined to do so. The next issue that was raised was a costs order sought by the mother in circumstances where the mother contended that there had been a financial settlement some time ago, last year, and where it was suggested there had been substantial success by the mother and that the matter might have been resolved without costs having been incurred at an early point in time. The Court is not persuaded that the circumstances to which the mother has referred to are circumstances that justify in this case the Court making a costs order, having taken into account the considerations under s 117(2A) of the Act.
In particular in the present case, the poor financial circumstances of the father outweigh the issues advanced by the mother to support the making of a costs order to support our finding of circumstances that justify such an order. The Court would also add that this is not a case where there has been substantial success in terms of a contested hearing. It is to the credit of the father that he has consented to the orders and saved much Court time and resources, and further costs by doing so. Further, the father had the benefit of the input of the observations made by the Court, having received the whole of the evidence that was not otherwise at that point available to the father.
Although there may have been the earlier receipt of funds, it is the father’s current financial position that is relevant and his want of current liquid assets means the Court is not persuaded that it is appropriate in the circumstances of this case to find that there are circumstances that justify the Court in making an order under s 117 in favour of the mother and accordingly the Court declined to do so.
Accordingly, the Court makes the above following orders which the Court is satisfied that the orders made are in the best interests of the children.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 20 February 2024
0