LETT & LETT

[2013] FamCA 178

FAMILY COURT OF AUSTRALIA

LETT & LETT [2013] FamCA 178

FAMILY LAW – PRACTICE AND PROCEDURE - application for parenting orders adjourned for mention to a fixed date – timetable set for the filing of affidavit material

FAMILY LAW – CHILDREN – Consent Orders – the husband, his parents and siblings to communicate with the children in writing

FAMILY LAW – COSTS – Order that husband pay the costs of the mother and Independent Children’s Lawyer thrown away on the hearing by instalments

Family Law Act 1975 (Cth) ss 117 and 117(2A)

APPLICANT: Ms Lett

RESPONDENT: Mr Lett

INDEPENDENT CHILDREN’S LAWYER: Ms Wilson

FILE NUMBER: CSC 289 of 2010

DATE DELIVERED: 1 March 2013

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 1 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jacobs

SOLICITOR FOR THE APPLICANT: Lehmann Featherstone

COUNSEL FOR THE RESPONDENT: Mr Lett in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Wilson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Newman Family Law

Orders

IT IS ORDERED

1. That the proceedings be adjourned for call over before his Honour Justice Tree at 9.00am on 15 May 2013 noting the following:

(a)that this matter had been listed for hearing in 2011 and the parties endeavoured to resolve the matter but that did not work and it was then listed for limited hearing in February 2013 and the proceedings were adjourned to enable a full hearing of the issues at the request of the husband;

(b)that apart from some short updating affidavits of both parties, all affidavits have been filed and that there is a concern that if there is a further Family Report it may involve systems abuse of the children; and

(c)that the matter will run for between 4 – 5 days having regard to the number of witnesses involved. 

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IT IS ORDERED BY CONSENT

1. That the communication order made by me on 3 September 2012 is suspended.

2. That the husband, his parents and siblings are permitted to send letters, cards and presents to the children as they consider appropriate.

3. That the wife is entitled to read the letters and cards and if appropriate withhold those letters and cards from the children, provided she notifies the husband as soon as is practicable of:

(a)the refusal to provide the information; and

(b)the reasons that she refuses to provide the information.

IT IS FURTHER ORDERED

1. That pursuant to s 65DA(2) and s 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

2. That each parent have leave to file such further material only of themselves as they consider appropriate on or before 4.00pm on Friday, 19 April 2013.

3. That the husband pay the costs of the Independent Children’s Lawyer thrown away on the hearing today of $400 by instalments of $20 per month over 20 months.

4. That the husband pay part of the costs of the wife thrown away on the hearing today of $600 by instalments of $20 per month for a period of 3 monthly lots. 

IT IS CERTIFIED

1. That 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 Lett & Lett 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 CAIRNS

FILE NUMBER: CSC 289 of 2010

Ms Lett

Applicant

And

Mr Lett

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The proceedings of Lett & Lett & the Independent Children’s Lawyer have been involved in this Court for some time.  They relates to the parenting arrangements for C, aged about eight and a half, and B, aged about six and a half.

2. The matter is or was in the Magellan list because the mother raised significant allegations of sexual abuse, which allegations have, at all times, been denied by the father.  The issue of the quality of the evidence of both the mother and the father is clearly a matter for this Court to determine.  The mother asserts that the father is violent, difficult and ought not to be in the lives of the children.  The father on the other hand asserts that the mother has adopted a long-term policy of excluding the father, and his family, in fairness, from the lives of the children.

3. The matter was to be heard by me in 2011.  At that time, after a family report had issued, the parties entered into some negotiations to put in place some arrangements for the children to spend time with the father.  Those arrangements were wholly unsuccessful.  The mother entirely blames the father.  The father entirely blames the mother. 

4. Further allegations have now been made which are again disputed by the father and which are alleged by the mother to be accurate.  The Family Consultant in her report observed that the father was exhausted by the proceedings and was not willing to put himself, and perhaps fairly his children, through the further trauma of a hearing.  The matter came before me on 13 February 2013 at which time the father simply said, “Look”, and I paraphrase, “I’ve had enough.  I just want to get some telephone contact.”  He has had a change of heart in those two weeks and tells me now that he wants the matter heard. 

5. The balancing act that I have is that of the needs of the children to have a relationship with the father and his broader family, if it safe and in the children’s best interests.  Counsel for the mother says that the father should be bound by his decision of two weeks ago.  The Independent Children’s Lawyer says that if the father wishes a hearing, then he should be entitled to have that hearing, although there may be questions of costs that arise.

6. In reading the material last night, I was deeply troubled at numerous levels.  I am troubled that the children may be exposed to risk.  I am concerned that the children may, particularly C, have a relationship with his father which could be lost and may be of value to him.  I am also concerned as to the children’s identification with both sides of their family.  Unfortunately, the lists of this Court are such that when a matter is adjourned, it will take some time to get it back again because I can’t see this matter taking less than four or five days to be heard.

7. It took me hours and hours to read all of the material last night, and this matter will need a five day hearing to properly determine it.  I am not inclined in all of the circumstances to accede to the request of the mother that the proceedings proceed today on the basis that it only be on telephone time.  I think in essence that the parties ought to be able to ventilate this case, sad as it may be for these children.

8. Accordingly, on the father’s application for adjournment, I will consent to that application.  I will have the matter listed into Tree J’s docket for a hearing as soon as is practicable.  There appear to be two things left for me to consider, and I will take submissions on those in due course.  The first is whether the existing orders ought to be suspended pending the finalisation of the hearing and secondly if there are any applications for costs.  First of all, I will direct that those reasons be taken out and placed on the Court file.

9. There is an application before me for costs.  I won’t reserve that, and I will determine that order for costs today.  Under the Family Law Act 1975 (Cth), costs are generally borne by each party, and s 117 makes that clear. However, there are some circumstances where costs can be ordered. Section 117(2) provides that:-

   If in proceedings under this Act, the Court is of the opinion that there are circumstances to justify it in doing so, the Court may, subject to sections (2A), (4), (4A), (5) and the applicable rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. 

   Section 117(2A) provides a series of checklists for a court to have regard to, and the High Court in Penfold,[1] I think it is, has told me that there’s no greater weight between s 117(1) and s117(2).  I have to consider them in the light of there being no threshold but just to determine it. 

   [1] (1980) 5 Fam LR 579, 28 ALR 213.

10. The first is the question of the financial circumstances of both – of each of the parties.  The father is unemployed and has been unemployed for two years, and that’s clearly set out in his affidavits.  He is in receipt of social security benefits, and he’s unlikely to get employment into the future.  The mother has the care of the two children and is in receipt of Legal Aid which means that she is in dire financial circumstances.

11. I raised with Legal Aid the question of the costs involved, and I know that Legal Aid in all states has limits, and whilst it is the public purse, it is not a limitless public purse and that one of the risks in this matter is that eventually Legal Aid will withdraw and leave the children unrepresented which would be unfortunate.  Both the mother and the Independent Children’s Lawyer are legally aided. 

12. It is primarily on the conduct of the father in saying to the Court and confirming with the Court that the matter was of limited scope.  The father has for reasons to which I have alluded to earlier changed his mind.  That has incurred significant expense in terms of the Independent Children’s Lawyer and in terms of the mother, albeit that expense would be met by Legal Aid but may, as I said, impact on the future funding of the parties and the children.

13. I do intend to make a costs order, but I intend to make a relatively modest costs order in all of the circumstances.  The amount sought by the Independent Children’s Lawyer was $1095 and by the wife was $1465.  I intend to make an order that the father pay $400 towards the cost of the Independent Children’s Lawyer and $600 towards the costs of the wife.  I will be directing that that money be paid by instalments of $40 ($20 each) per month which the husband said he could afford.  It will take some time, but it will also acknowledge the importance of the issues to which I have alluded to earlier. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 1 March 2013.

Associate:     

Date:              1 March 2013