Independent Children’s Lawyer and Seidler

[2017] FamCA 304

FAMILY COURT OF AUSTRALIA

INDEPENDENT CHILDREN’S LAWYER & SEIDLER [2017] FamCA 304

FAMILY LAW – COSTS – Application by the Independent Children’s Lawyer – Where the mother has agreed to pay her portion of the Independent Children’s Lawyer’s costs – Where the father objects to paying his portion – Where the father has the financial capacity to contribute to the costs of the Independent Children’s Lawyer – Where the mother’s conduct in the proceedings is questionable – Where the mother has been wholly unsuccessful and the father wholly successful – Where the circumstances do not justify an order for costs – Orders made dismissing the application for costs.  

Family Law Act 1975 (Cth) s 117

De Roma & De Roma [2013] FamCA 566
Penfold v Penfold (1980) 144 CLR 311
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

APPLICANT: Independent Children's Lawyer

RESPONDENT: Mr Seidler

FILE NUMBER: PAC 3322 of 2014

DATE DELIVERED: 15 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 28 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stevens

SOLICITOR FOR THE APPLICANT: Legal Aid Parramatta

COUNSEL FOR THE RESPONDENT: Mr Macpherson

SOLICITOR FOR THE RESPONDENT: McLachlan Thorpe Partners

Orders

(1)The Oral Application made by the Independent Children’s Lawyer on 28 February 2017 that the father pay the costs of the Independent Children’s Lawyer is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Independent Children's Lawyer & Seidler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3322  of 2014

Independent Children's Lawyer 

Applicant

And

Mr Seidler

Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment concerns an oral application for costs made on behalf of the Independent Children’s Lawyer (‘ICL’) in respect of payment of the ICL’s costs by the respondent father in parenting proceedings.

2. The proceedings between Ms Seidler (‘the mother’) and Mr Seidler (‘the father’) concerned the parenting arrangements for their seven year old daughter, B (‘the child’).

3. The final hearing was listed for five days beginning 22 February 2017. The proceedings were finalised by way of consent orders on 28 February 2017.

4. Following the making of consent orders the ICL sought that each party pay the ICL’s costs in the proceedings. The mother consented to paying her share of the ICL’s costs but the father did not consent to paying his share.

5. Orders were made on 28 February 2017 for the father to file an affidavit with respect to the ICL’s Application for costs and for the ICL and the father to file an outline and written submissions as to the issue of the ICL’s costs within six weeks.  

6. The parties agreed that following receipt of the above documents no further court event was necessary and the issue of the ICL’s costs against the father could be dealt with in chambers.

Background

1. The father, a 40 year old senior researcher, and the mother, a 40 year old health professional, commenced a relationship in 2002 and were married in 2004.

2. The parties’ only child was born in 2010.

3. In 2011 the parties separated and were subsequently divorced in 2015.

4. Subsequent to separation the mother re-partnered and had a second child with her new partner in September 2014.

5. On 15 September 2014 final orders were made by consent for the mother and father to equally share parental responsibility for the child who was to live equally with each parent in a shared care arrangement.

6. In April 2016 the mother did not make the child available to the father in accordance with the orders following alleged disclosures of sexual abuse by the child.

7. As a result of these alleged disclosures the child was interviewed by the Joint Investigation and Response Team[1] (‘JIRT’) on 22 and 26 April 2016. In the first interview the child made no disclosures to JIRT. The mother asserts that after this interview the child told her that she had not been truthful in the interview. The mother telephoned the JIRT detective assigned to the case with this information and subsequently the child was interviewed again on 26 April. In the second interview the child did make some disclosures. However, the allegations of sexual abuse were not substantiated. No further action was taken as the child was assessed to be safe due to her no longer spending unsupervised time with her father.   

   [1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

8. A provisional Apprehended Domestic Violence Order (‘ADVO’) was made for the protection of the child in May 2016. Proceedings in relation to a final ADVO are ongoing and are expected to be finalised in May 2017 when the father has been informed that the police will withdraw the ADVO.

9. On 10 May 2016 the father filed an Initiating Application seeking that the parenting regime be reinstated. On this date the matter was placed in the Magellan Program, a Magellan Report was ordered and the ICL was appointed.  

10. On 2 June 2016 the Magellan Report was released. According to that report the allegations of sexual abuse of the child by the father were not substantiated because the child was unable or unwilling to provide contextual information around the disclosures, was not able to nominate the first or the last time the alleged acts occurred and there were inconsistencies between the first and second JIRT interviews.   

11. In June 2016 a Single Expert was appointed to carry out an assessment of the family with the consent of the parties.

12. The Expert Report (‘the first Report’) was released to the parties on 15 August 2016. On that date it was agreed by the parties and the ICL that another Expert Report would be required. Consent orders were made for the child to spend supervised time with the father for three hours each week.

13. On 5 September 2016 orders were made by consent for a second Single Expert Report to be prepared. It was also noted on that date that the father had not been spending time with the child as provided for under the orders of 15 August 2016 due to difficulties at changeovers. Orders were made by consent for the father to spend time with the child in accordance with 15 August 2016 orders and for changeover to be facilitated by Child Dispute Services. Subsequently the orders were complied with and the father spent time with the child as ordered.

The Second Expert Report

1. The mother, the father and the child were interviewed and each of the parents observed with the child by the second single expert in October 2016.

2. The second Expert Report (‘the second report’) was released on 20 December 2016, two months prior to the commencement of the final hearing.

3. The most significant issue to be considered in the parenting dispute was whether the father posed a risk of sexual harm to the child.

4. In that report the single expert came to the following conclusions regarding the alleged sexual abuse of the child by the father:

   180. … I think that the likelihood that [the child] has been sexually abused is extremely low. Having said that, it is difficult to absolutely determine this because she has been so repeatedly interviewed both by experts and by family members that it is difficult to determine the absolute meaning of anything that she says. In cases where children’s testimony, experience or memories have been so contaminated, it is quite difficult to accurately determine their accuracy.

   …

   185. In considering the father, I note that he has not had a history of criminal activity. There is no history of prepubescent sexual attraction or aberrant sexual behaviour. He does not have a history of being sexually or physically abused himself.

   186. I have reviewed the history contained in documents related to the parents’ treatment at the Australian Centre for Sexual Health. The father’s history and treatment indicates no risk factors for sexual abuse.

   187. Overall, biological fathers who form strong early attachments to their children and who are actively involved in their nurturing are very unlikely to sexually abuse their children. The highest risks of sexual abuse of children are abuse by other children and step-parents.

   188. The father has a history of being highly involved in [the child’s] care since she was a baby, including being involved in [the child’s] physical care, including toileting and bathing.

   189. I also have mind to the fact that [the child] displayed strong indication that she had been coached and primed for her interviews with me and had been explicitly instructed to report negatively about her father and to re-state the sexual abuse allegations.

5. The single expert was of the opinion that the father has an extremely good parenting capacity to care for the child and that his parenting capacity was actually greater than that of the mother. The single expert relevantly reported:

   178. As expressed previously, I think that both parents have a very good capacity to practically care for [the child]. On balance, I thought the father had better skills in being able to manage [the child’s] behaviour and to provide warm and structured parenting. The mother was much more passive in her interactions with [the child] and showed some limitations in being able to assist [the child] with appropriate behavioural regulation.

6. The single expert held no concerns about the child spending time with the father and recommended that the child spend time with the father and that this time be unsupervised. The single expert recommended that if the child were to primarily live with or spend time with one parent, that parent should be the father:

   196. … On balance, I think the father has more appropriate parenting skills, that [the child] has historically had a more secure attachment relationship with him, and that the father has demonstrated that he has been able to prioritise [the child’s] needs by ensuring, for example, that she has contact with family members despite the fact there has been a significant dispute. The father also appeared to be acutely aware of the stress and loyalty bind that [the child] was in. Consequently, of the two parents, I think that he is the one who is likely to demonstrate the maturity to give [the child] the best possible chance of continuing to enjoy her relationship with her mother and maternal grandparents if she is in his care for the majority of the time.  

Final Hearing

1. The final hearing for the matter commenced on 22 February 2017 and concluded on 28 February 2017 when the matter was settled and consent orders were made.

2. During the final hearing the mother was extensively cross examined over the course of two days. During that cross examination it came to light that the mother and maternal grandmother had made multiple recordings of conversations with the child in which they asked the child about disclosures she had made about being sexually abused. These recordings were played in court. Under cross examination the mother agreed that she made these recordings as evidence of sexual abuse and that she should not have done so. The maternal grandmother, under cross examination, stated that she would make further recordings if necessary given her belief that the father had sexually abused the child. Following the maternal grandmother’s evidence on Friday 24 February 2017 an order was made restraining the maternal grandparents from coming into contact with the child over the weekend of 25 and 26 February 2017.

3. On Monday 27 February 2017 an application was made on behalf of the mother for me to disqualify myself from the proceedings. In the course of making that application counsel for the mother informed the court that the mother’s partner would not be appearing in court to give evidence in the proceedings. I dismissed the application for disqualification. Subsequently the parties entered discussions and came to heads of agreement on a variety of issues.

4. On 28 February 2017, following discussions between the parties, orders were made with the consent of the parties settling the parenting dispute.  

5. Those consent orders provided in summary for the parents to equally share parental responsibility for the child, for the child to live with the mother and father as agreed or, failing agreement, in a week about arrangement. Under the orders agreed to the child is to spend half the school holidays with each parent, the mother and child are to separately attend counselling, the mother is to be present when the child is in the presence of the mother’s partner or the mother’s partner’s child and the mother is to refrain from recording the child in relation to sexual abuse allegations.   

6. Following consent orders being made the ICL made an oral application for the parties to pay the ICL’s costs of the proceedings. The mother consented to such an order but the father did not. Orders were made for the father to file an affidavit and for the ICL and the father to file written submissions with respect to the issue of costs.

Submissions

The ICL

1. The ICL seeks an order that the father pay the ICL’s costs in the amount of $9,052.68 within a period of three months.

2. The ICL correctly submits that sections 117(2) and 117(3) of Family Law Act 1975 (“the Act”) provide for the court to make an order that each party bear a proportion of the ICL’s costs and that the general rule in section 117(1) of the Act (that each party is to bear their own costs) does not apply to the ICL.[2]

   [2]De Roma & De Roma [2013] FamCA 566.

3. The ICL contends that the father is not in receipt of a grant of legal aid at any point in the proceedings and has the financial capacity to contribute to the ICL’s costs given his income, savings and assets deposed to in his affidavit filed 28 March 2017.

4. Further the ICL argues that the father has been on notice since May 2016 that a costs order may be sought by the ICL at the conclusion of the proceedings and that he has been able to make provision to pay his other legal costs in amounts that far exceed the costs of the ICL. 

The Father

1. The father seeks that there be no order as to costs made against him.

2. The father relies on section 117(4)(b) of the Act in contending that he would suffer financial hardship should he be ordered to bear a proportion of the ICL’s costs.

3. The father submits that he has exhausted his savings, has had to borrow a significant amount of money from his parents in order to pay the costs of the final hearing and has recently depleted his bank accounts in order to pay outstanding legal fees.

4. Further, the father contends that he requires any remaining funds to cover ongoing fees in regards to ADVO proceedings instigated against him at the commencement of these proceedings.

5. In his March 2017 affidavit the father deposes to his current financial circumstances. He deposes to having $26,047.22 in assets and $406,920.13 in liabilities. Those liabilities include $5,454.28 in outstanding fees for family law proceedings, $19,155.05 in fees for ADVO proceedings and debt to the father’s parents of over $90,000 for legal costs. In addition to these liabilities the father deposes that he has already paid over $200,000 in legal fees for the family law proceedings and anticipates incurring further legal fees in regards to the ongoing ADVO proceedings.

6. The father deposes to his weekly income being $2,559 and his current weekly expenditure for himself and the child being $2,000 per week including $115 per week in assessed child support.

The law & Discussion

1. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Act sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), and the Court may make an order for costs if there are circumstances that it is of the opinion justify it in doing so.

2. The High Court in the matter of Penfold v Penfold[3] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [3] (1980) 144 CLR 311

3. The Act makes specific provision in section 117 for orders as to the costs of an ICL:  

   (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.

   (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.

   … 

   (5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.

4. The Court is conscious of the restrictions provided in section 117(4) of the Act that the Court must not make an order against a party in favour of an ICL if the party has received legal aid in the proceedings, or if the Court considers the party “would suffer financial hardship” as a result of an order to bear a proportion of the ICL’s costs.

The Father’s Financial Capacity

1. The father contends that he does not have the financial capacity to bear the costs of the ICL and would suffer financial hardship were a costs order to be made against him. The ICL contends that the father has the financial capacity to meet an order for costs.

2. While the father has expended significant financial resources in these family law proceedings, in his affidavit the father has deposed to having a weekly income that exceeds his weekly expenses and other assets, including shares, that could be utilised to pay the ICL’s costs.

3. On that basis I accept the ICL’s submission that the father has the financial capacity to contribute to the ICL’s costs and is not exempt under section 117(4)(b) of the Act.

The Section 117(2A) Considerations

1. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.The relevant matters will be considered and balanced below, noting that there is nothing preventing any one factor being the sole determinant for an order for costs.[4]

   [4]PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

The financial position of each of the parties to the proceedings

1. For the reasons given I am satisfied that the father has the financial capacity to contribute to the costs of the ICL.

The conduct of the parties to the proceedings in relation to the proceedings

1. The conduct of the mother in the parenting proceedings is relevant to this application for costs as it is she who consented to orders substantially in the terms sought by the father (which were also in accordance with parenting arrangements in place prior to her not making the child available to the father and the father initiating these proceedings).

2. In ultimately consenting to those orders the mother must be taken to have abandoned her contention that the father posed an unacceptable risk of harm to the child related to sexual abuse which she had maintained in the trial up until the matter was resolved.

3. The absence of risk posed by the father is consistent with the mother’s own experience of the father prior to the child’s alleged disclosures, the father’s denial of wrongdoing, the findings of JIRT and the expert opinion.

4. The mother does not provide any explanation for failing to agree to a return to the previous parenting arrangements at any stage earlier in the proceedings. It can be inferred in my view that her decision was related to her partner’s failure to attend court to give evidence. In this sense it may be said that her conduct unnecessarily prolonged the proceedings and is responsible for the ICL’s costs incurred in the trial. 

5. As the matter settled I was not required to make a finding as to whether the child was at risk of being sexually abused by the father. However, the fact that the mother agreed to orders for the child to live equally with herself and with the father indicates that the mother cannot hold the view that the father poses an unacceptable risk of harm to the child.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

1. As noted when considering the mother’s conduct in the proceedings, the consent orders made in the proceedings are substantially the same as the orders that were in place prior to the mother ceasing the father’s time with the child in April 2016. They are also substantially the same as the orders sought by the father at final hearing.

2. In these circumstances the mother has been wholly unsuccessful in the proceedings and the father has been wholly successful. 

conclusion

1. In my view the ICL’s costs, particularly in the final hearing, were incurred due to the mother’s conduct of the proceedings particularly also a result of her maintaining allegations that the father sexually abused the child. In circumstances where the mother at the concluding stages of the final hearing, after her partner failed to attend court to give evidence, agreed to orders that are substantially the same as orders in place prior to allegations of sexual abuse being made, it would not be just to make an order for the father to pay the ICL’s costs.  

2. Balancing the relevant matters that I have set out, I am satisfied that there should be no costs order made against the father.

3. The orders that I make are set out at the forefront of these Reasons for judgment.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 May 2017.

Legal Associate: 

Date:  15 May 2017