Independent Children’s Lawyer and Leroux & Ors
[2016] FamCA 589
•18 May 2016
FAMILY COURT OF AUSTRALIA
| INDEPENDENT CHILDREN’S LAWYER & LEROUX AND ORS | [2016] FamCA 589 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application by father for adjournment of fixed hearing date – Application dismissed. |
FAMILY LAW – PRACTICE AND PROCEDURE - Application by Independent Children’s Lawyer for appointment of a single expert – Application granted - Application by Independent Children’s Lawyer for an order for security of experts costs – Application dismissed.
| Family Law Act 1975 (Cth) ss 117(3) and 117(4) |
Family Law Rules 2004 (Cth) r 15.47
| APPLICANT: | Independent Children’s Lawyer |
| FIRST RESPONDENT: SECOND RESPONDENT INTERVENERS: | Mr Leroux Ms Leroux Mr and Mrs Digby |
| FILE NUMBER: | HBC | 909 | of | 2014 |
| DATE DELIVERED: | 18 May 2016 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 18 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P Fitzgerald |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Commission of Tasmania |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr R Blissenden |
| SOLICITOR FOR THE 2ND RESPONDENT: SOLICITOR FOR THE INTERVENERS: | Blissenden Lawyers In person |
Orders
Dr L, Psychiatrist be appointed as the single expert witness to assess the psychiatric, psychological and other mental health issues of the first and second respondents, Mr Leroux and Ms Leroux.
That for the purpose of order 1 herein, the terms of reference are those set out in annexure “A” attached hereto.
Orders 3, 4, 5, 6 and 7 set out in the application in a case filed by the Independent Children’s Lawyer on 6 April 2016 be dismissed.
IT IS DIRECTED
The Independent Children’s Lawyer write to each of the parties within fourteen (14) days from the date of this order indicating whether Legal Aid Tasmania continues in its view that it is unable to fund the report.
The Independent Children’s Lawyer be relieved of the requirement to fund that report or proceed with that report in the event that such funding is not available.
A copy of the reasons for these orders be taken out and placed on the court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Independent Children’s Lawyer & Leroux and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 909 of 2014
| Independent Children’s Lawyer |
Applicant
And
Mr Leroux
First Respondent
And
| Ms Leroux |
Second Respondent
And
Mr and Mrs Digby
Interveners
EX TEMPORE REASONS FOR JUDGMENT
This is an application in a case brought by the Independent Children’s Lawyer in three parts. Firstly, it is for the appointment of Dr L as a single psychiatric expert in relation to an assessment of either one or both of the parents in this proceeding. Secondly, it is an application for an order for security as to two-thirds of that cost, pursuant to the Family Law Rules 2004 (Cth) (‘the Rules’), in particular, rule 15.47 in that the Independent Children’s Lawyer does not seek the order at the present time, but seeks security in relation to two-thirds of that fee, which could amount to somewhere between $15,000 and $20,000. I have had regard to the evidence as to the cost of that report and the need for that expert to give evidence, although that may be reduced in two ways: firstly, by the giving of evidence by telephone, although that cannot be made clear until the parties have had the opportunity to read the report; and, secondly, perhaps in a very modest way, in my view, in terms of examining one witness rather than two.
The second part is security in relation to the making available of two psychologists. I accept the submissions of Mr Blissenden that it is clearly under s 117 of the Family Law Act 1975 (Cth) (‘the Act’).
These proceedings relate to the children D, aged 14, and E, aged 12. The father’s position in this case, as I understand it at the present time, is that the children should spend equal time with him and equal time with the mother. There is an also an application by the paternal grandparents seeking orders that the children spend time with them in the event that the father’s application is unsuccessful, presumably. The mother’s case is that, given the circumstances in this matter, the father should spend no time with either of the children.
The range in this case is quite broad. This case has been marked by very high levels of litigation and very high levels of conflict between the parties, to which I have alluded in earlier reasons. The Independent Children’s Lawyer says, in looking at the material so far, it would be of enormous assistance in the decision-making to have available an independent report such as that provided by Dr L, but goes on to say that the Legal Aid Commission, given its current funding, only has the capacity to meet one-third of that cost and not the other two-thirds but, nonetheless, says that the material is important. That is supported by the mother in terms of the submissions that were made by Mr Blissenden and is supported by the father insofar as he has doubts as to the mother’s mental health and suggests that her mental health will be a significant factor.
The father says that his mental health is not a factor and that it would serve no meaningful purpose in the Court having his mental health assessed, however, he does not object to doing so, provided he is not left with the cost of that. I have considered the breadth of the terms of reference set out in the proposed orders and I am likely to make that order. The question comes back to whether the Court ought to make an order securing the costs of both the expert psychologists, who will be needed to give evidence, and the single expert. The undisputed fact in this case is that at one stage for a short period of time the father was granted in receipt of a grant of Legal Aid.
The effect of that grant of Legal Aid, which I accept, is that section 117(4) of the Act applies, and I need to read s 117(3) first which provides and I quote:-
117(3)To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
It then follows with s 117(4) which provides:-
117(4)However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer. (emphasis added)
It is not in issue in this case that the father, at one stage, had a grant of Legal Aid and it is, I think, conceded by the Independent Children’s Lawyer that as a consequence s 117(4) would apply. So in terms of the father, and I will deal with him first, the question is whether rule 15.47 operates under the inherent jurisdiction of the Court, as is submitted by the Independent Children’s Lawyer, and, in doing so, refers me to the well-known case of Penfold[1] and perhaps to the less well-known case of Re JJT & Ors; ex parte, Victoria Legal Aid (1988) 195 CLR 184, in particular, paragraph 149, or whether the source of power of that rule is pursuant to s 117 of the Act. The rule, in essence, provides that each party will meet the costs of the single expert.
[1] (1980) FLC 90-800.
In saying what I am going to say now, it should be treated not as ratio decidendi, but as obiter dictum because I have not had the opportunity to consider this at the lengths that I should consider it and I do not wish to delay this matter whilst I engage in preparing or setting out a learned aspect of the law in this regard. I accept that the Court has an inherent jurisdiction where the Act and Rules do not necessarily provide the power. An example of that may well have been in the Full Court decision regarding the limited powers of the Court to make orders preserving the litigation in a de facto matter. (see Norton v Locke (2013) FLC 93-567.
However, in this case the legislature has spoken quite loudly and it seems to me that it is more likely than not that the legislation particularly includes a provision in there regarding costs. I am not sure that I agree with learned Magistrate Neville in Reid v Reid [2010] FMCAfam 1488 as to the fine distinction between costs and expenses. It would seem to me that costs and expenses generally fall into the same category. Without making, as I said, a final determination as to the meaning of the law, given the status of the law at the present time, I do not intend to make the orders sought by the Independent Children’s Lawyer with regard to security for the fees of the single expert and/or security for fees for the other witnesses as sought by the Independent Children’s Lawyer.
Although, for the purpose of the parties, I note that the Rules still apply and each of them will need to consider whether they need to make an application at the hearing as to whether those rules ought to be dismissed for the reasons that I may have discussed in this judgment or in a broader fashion at that time. The second question is whether, on the other hand, the mother should be required to secure a property for the purpose of the witnesses and the single expert on the basis articulated by the Independent Children’s Lawyer. The mother’s evidence is that she has been subjected to significant financial hardship and it is likely that, at the end of the day, this proceeding will leave her with no money at all or monies unavailable to her, being outside the jurisdiction. I have accepted that submission, and I do not, in the circumstances, intend to make the orders sought. I am cognisant that the result of that may well be that no report is obtained from Dr L, and if that is the case, so be it. The Court will have to manage with the information it has available to it.
There is an application before the Court, by the father, for an adjournment of the hearing. It is in his application in a case filed 27 April 2016 and supported by his affidavit of 27 April 2016. Unfortunately for the parties and the Court, the Court is not in a position to offer a three week hearing after 1 October 2016. Such a three-week hearing would need to go back probably until April or May the following year, which, given what these children are enduring at the moment, would seem to be too far away. The case needs to be heard.
Given that this case is likely to go into a third week anyway, it will be difficult enough for the Court to find a third week, although it will find a third week, some time in October, November or even December. So therefore the concern of the father in relation to giving therapy a “red-hot go”, and those are my words, not his, it is likely to occur in any event, in that the proceedings are unlikely to be concluded in the two weeks to which I have already listed the matter. Accordingly, I will be dismissing the application of the father in terms of that delay.
There are a number of other aspects in that case, the most pressing of which is that neither of the parties have filed their trial affidavits. Given the level of litigation in this matter with interim applications and the like, and I make no adverse comment in relation to either party in that regard at this stage, and given the father’s assertion as to the stress and the report to which he attached to his material, I can understand why that has not been complied with.
The father has set out in his application in a case a list of witness whom he intends to call. No doubt he will file affidavits by such of those witness whom he intends to call, because I remind him, and I make it clear, that the evidence that he will be able to call is that contained in affidavits that are filed in the hearing and that which he seeks to adduce by way of production of documents in the bundle of documents to which I have previously referred. I intend to give the parties to the end of June 2016 to file their primary affidavits. I do that for a number of reasons.
No doubt some of the matters that have arisen today and the last time the matter was heard gave rise to, perhaps, further considerations to what evidence should be made available, and given the father’s assertion as to his health. The third thing is the father wants a particularly nominated family consultant to provide a report. I am not inclined to do so. This Court, through its administration, applies such resources as the Court can properly allocated rather than have the parties impose unnecessary expenses on the Court, because, like all parts of government, the Court is independent of government but part of government and we have to live within our means.
The further matter which I have raised is this: I had noticed that I had listed the matter for two weeks hearing and included at the end of that another two days for the hearing of the property matter. I am concerned, in this matter, that I need to adopt a fairly robust approach in terms of dealing with the parties, and I will continue to do so.
It may be, and I have not formed a final thought on this matter yet, that it would be appropriate for me to arrange for a different judge to undertake the final hearing of this matter, given the robustness of my approach so far, and I will consider that in due course and as a result of which it would seem to me that the property matter should simply be part of the general milieu of the parenting proceeding, particularly given that it now looks like the matter will run for about three weeks.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 18 May 2016.
Associate:
Date: 18 May 2016
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