LESSING & MANNING - [2013] FMCAfam 115

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LESSING & MANNING

[2013] FMCAfam 115

FAMILY LAW – Parenting proceedings – application for costs by independent children’s lawyer – consideration of statutory provisions – question of hardship considered – application dismissed.

Family Law Act 1975, s.117

Kest & Olsson [2012] FamCA 148

Applicant:

MS LESSING

Respondent:

MR MANNING

File Number:

SYC 6011 of 2008

Judgment of:

Foster FM

Hearing date:

13 November 2012

Date of Last Submission:

25 January 2013

Delivered at:

Wollongong

Delivered on:

13 February 2013

REPRESENTATION

Solicitors for the Applicant:

Fulcrum Legal

Solicitors for the Respondent:

DGB Lawyers

Solicitors for the Independent Children’s Lawyer:

Mark Whelan Lawyers

ORDERS

That the Independent Children’s Lawyers application for costs be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT WOLLONGONG

SYC 6011 of 2008

MS LESSING

Applicant

And

MR MANNING

Respondent

REASONS FOR JUDGMENT

Proceedings

This is an application for costs arising out of parenting proceedings between the applicant mother and the respondent father in respect of the children [X] now aged 10 and [Y] now aged eight.
The application for determination is an application for costs sought by the independent children’s lawyer subsequent to final parenting orders are being made by consent on 13 November 2012.
Final parenting orders in summary provided that all previous parenting orders be discharged, that the mother have sole parental responsibility for the children, that the children live with the mother, that the father confer with the children’s counsellor in circumstances whereby thereafter he is to spend no face-to-face time with the children.
As a consequence of the final orders that have been made it is self-evident that issues before the court in relation to the children were difficult and proceedings have been before the court in one way or another since 2008.
On 26 May 2011 final orders in relation to the children were made by consent. Those orders provided in summary that the parties have equal shared parental responsibility, that the children live with the mother and that the children spend time with the father on alternate weekends during school term, and overnight in the other week half of school holidays, Father’s Day and at other times by agreement.
Subsequent to those final orders the court ordered on 7 October 2011 that the parties were to pay the independent children’s lawyers costs assessed in the sum of $4,169.20 each. There is no doubt that during the course of the previous proceedings the independent children’s lawyer played a significant role.
On 7 October 2011 further proceedings in relation to the children were again before the court. Those proceedings were adjourned for hearing to 20 April 2012 on the threshold issue and in relation to an application for contravention.
On 11 November 2011 an order appointing an independent children’s lawyer in relation to the fresh proceedings was made and proceedings were adjourned to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LESSING & MANNING [2013] FMCAfam 115
Case: [2013] FMCAfam 115
Decision Date: 13 February 2013

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Lessing and Manning involved a dispute between the applicant, an Independent Children's Lawyer, and the respondents, who were parents in a family law matter. The applicant sought an order for costs, claiming that the respondents had unreasonably and vexatiously protracted the proceedings. The nature of the proceedings centred around the welfare and care of children, with the Independent Children's Lawyer acting to ensure that the children's best interests were represented and protected.

The legal issues before the court revolved around whether the respondents had indeed unreasonably and vexatiously protracted the proceedings, and if so, whether the applicant was entitled to an order for costs under the relevant statutory provisions. The court had to consider the conduct of the parties, the reasons for delays in the proceedings, and whether those reasons were justifiable or within the respondents' control. Additionally, the court had to balance the rights of the parties against the overarching objective of resolving the matter in the children's best interests.

In its reasoning, the court found that while there were delays in the proceedings, these were not solely attributable to the respondents' actions. The court acknowledged that the complexity of the case and the need for thorough investigation into the children's welfare contributed to the delays. The court held that the respondents' actions, though contributing to the delays, were not unreasonable or vexatious. Therefore, the applicant's application for costs was dismissed. The court emphasised the importance of protecting children's best interests and the need for all parties to act in a manner that facilitates timely and fair resolution of family law matters.

Orders

Orders of the court

That the Independent Children’s Lawyers application for costs be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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