Lissa & Simu
[2023] FedCFamC2F 1414
•3 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lissa & Simu [2023] FedCFamC2F 1414
File number(s): SYC 8434 of 2019 Judgment of: JUDGE MONAHAN Date of judgment: 3 November 2023 Catchwords: FAMILY LAW – parenting – costs – final hearing – where the parties settled the substantive parenting dispute by consent on a final basis – discrete issue of the Independent Children’s Lawyer’s costs – where the Second Respondent had a previous grant of legal aid – where the Applicant and Third Respondent oppose a costs order in favour of the Independent Children’s Lawyer – where First Respondent did not participate in the proceedings – where the Court orders the Applicant only to pay a contribution to the Independent Children’s Lawyer’s costs fixed in the sum of $5,750 subject to a waiver application to Legal Aid NSW Legislation: Family Law Act 1975 (Cth) ss 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 reg 12.13
Cases cited: Gillen & Lindo (No 2) [2021] FedCFamC1F 211
Lissa & Simu & Anor [2020] FCCA 2700
Kest & Olsson [2012] FamCA 148
Theobald & Delancy (No.4) [2012] FMCAfam 1140
Division: Division 2 Family Law Number of paragraphs: 72 Date of hearing: 1 November 2023 Place: Sydney Counsel for the Applicant: Mr Wong Solicitor for the Applicant: Sydney West Family Lawyers Counsel for the Second Respondent: Ms Beck Solicitor for the Second Respondent: Biddulph & Salenger Counsel for the Third Respondent: Mr Todd Solicitor for the Third Respondent: Shelly Legal Counsel for the Independent Children's Lawyer: Mr Braine Solicitor for the Independent Children's Lawyer: S P Nasti & Co Solicitors ORDERS
SYC 8434 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LISSA
Applicant
AND: MR SIMU
First Respondent
MS MORRIS
Second Respondent
MR LISSA
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MONAHAN
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Within six (6) months from the date of these Orders, and subject to any waiver given by Legal Aid NSW, the Applicant pay to Legal Aid NSW a contribution to the costs of the Independent Children’s Lawyer fixed in the fixed amount of $5,750.
2.All extant costs applications be otherwise dismissed.
3.The appointment of the Independent Children’s Lawyer be discharged.
AND THE COURT NOTES THAT:
A.These Orders are to be read in conjunction with the final parenting orders made on 1 November 2023.
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 MONAHAN:
INTRODUCTION
This decision arises from parenting proceedings between the Applicant, MS LISSA (“the mother”), the First Respondent, MR SIMU (“the father”), the Second Respondent, MS MORRIS (“the maternal grandmother”) and the Third Respondent, MR LISSA (“the maternal grandfather”).
The relevant child is X, born in 2015 (“X” or “the child”).
An Independent Children’s Lawyer (“ICL”) was appointed to these proceedings by an Order made by the Court on 11 March 2020.
The matter had the benefit of an interim hearing, which included the participation of the ICL: see Lissa & Simu & Anor [2020] FCCA 2700.
The final hearing of the mother’s application was listed before me over three days commencing on 1 November 2023.
The parties were legally represented by counsel at the final hearing; the mother was represented by Mr Wong, the maternal grandmother by Ms Beck, the maternal grandfather by Mr Todd and Mr Braine appeared for the ICL.
The parties were able, to their credit, to resolve the entirety of the parenting dispute by the very end of the first listed hearing day and without the necessity for any cross-examination. A copy of the relevant orders, as amended pursuant to Rule 10.13 of the Family Law Rules, is reproduced in Schedule 1 to these reasons.
The only issue that remains in dispute is the issue of whether the parties should pay the ICL’s costs. Although the ICL’s Costs Notice dated 31 October 2023 disclosed costs estimated to be $17,743, the ICL subsequently amended his total costs to the reduced amount of $11,500 to reflect the settlement of the matter by the end of the first hearing day.
Given the discrete nature of the dispute, the Court allowed the parties to make brief oral submissions and, given the lateness of the hour and complexities associated with the ICL’s claim, the Court reserved its decision.
Unless otherwise state, any statutory references in these reasons will be to the Family Law Act 1975 (Cth) (“the Act”), the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Family Law Rules”) and the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (“the Division 2 Family Law Rules”).
BACKGROUND
The mother was born in 1997 and is currently 26 years old.
The maternal grandmother was born in 1969 and is currently 54 years of age.
The father was born in 1990 and is currently 33 years of age. The father has never participated in these proceedings and his current whereabouts are unknown.
The maternal grandfather was born in 1966 and is currently 57 years old.
X, who will shortly turn 8 years of age, has resided with the maternal grandmother since mid-2016. At the time the child came into the care of the maternal grandmother, the mother was in a violent relationship with the father. I note that the mother gave evidence that she voluntarily placed X with the maternal grandmother. The mother was subsequently charged and convicted of serious drug offences in early 2017 and spent time in gaol before being paroled in late 2018. It was during her imprisonment that the mother was diagnosed with substance abuse disorder, a mental illness, and complex post-traumatic stress disorder.
In mid-2019, an incident occurred between the mother and the maternal grandmother that resulted in apprehended violence order proceedings against the mother that I note were subsequently defended and dismissed.
In December 2019 the mother commenced these family law proceedings.
The proceedings first came before me in a duty list on 11 March 2020. On that occasion I made interim orders that provided inter alia for the child to remain living with the maternal grandmother, for the child to spend professionally supervised time with the mother, and for the mother to undertake drug testing. I also made orders for the appointment of an ICL and for the mother’s interim application to be listed for hearing on 23 July 2020.
On 23 July 2023 I made further orders by consent adjourning the interim hearing until 7 September 2020.
Following the interim hearing on 7 September 2020, I made interim orders for the child to spend supervised time only with the mother: see Lissa & Simu & Anor [2020] FCCA 2700. The supervised time ordered was a combination of time to be spent in a contact centre supplemented by additional time supervised by the maternal grandfather or the maternal great grandmother, Ms C.
I note that the mother was charged with further criminal matters during 2020 and 2021 and entered rehabilitation for drug use in 2021 and 2022. She has recently completed an Intensive Corrections Order that was imposed upon her in early 2022.
On 10 August 2021, the maternal grandfather filed an application to spend time with X, and to be joined to these proceedings. That application came before me for hearing on 2 November 2021 and, on that occasion, the parties were able to enter into orders by consent allowing the maternal grandfather to intervene and for the child to spend every second Sunday with him. I note that this period coincided with the mother’s rehabilitation issues referred to above and during a period of time that the child was not spending time with her.
The proceedings later had the benefit of a comprehensive expert report from Dr K, dated 15 February 2023. I note that Dr K provided the following recommendations in paragraphs 161 to 170 of her Expert Report:
161.It is recommended, unless the parties can demonstrate improved communication, that parental responsibility be granted to [Ms Morris].
162.It is recommended that [Ms Lissa] be kept informed of any medical or educational decisions that are made for [X].
163.It recommended that [X] live with [Ms Morris].
164.It is recommended that [X] spend time with [Ms Lissa] during the day only on a fortnightly basis, and that the time occur in the general presence of [Mr Lissa] or [Ms Lissa] (snr).
165.It is recommended that the living arrangements for [X] be reviewed in two years, and any advancement in time including overnight time be contingent on [Ms Lissa] being able to sustain a substance-free lifestyle, demonstrate protective capacities from violent relationships, be compliant with medication use and therapy, and have stable and established living arrangements.
166.It is recommended that the parties engage with a therapist, specifically with the view of working on [X]’s relationships with her grandmother and mother with a particular view of addressing attachment issues.
167.It is recommended that random drug-testing continue for [Ms Lissa], and that time be suspended if she returns a positive result.
168.It is recommended that there be no denigration of the parents or significant others, or any discussions pertaining to the dispute with [X].
169.It is recommended that [Ms Lissa] continue engagement with her drug and alcohol therapist and other mental health interventions.
170.It is recommended that [Ms Lissa] complete a Circle of Security or Tuning Into Kids parenting program.
The parties subsequently came before me on 11 July 2023. As the parties’ dispute remained unresolved, I listed the matter for final hearing on the dates previously referred to. I also noted the following in the Orders made that day:
A. The Court was informed that the Applicant currently has her liberty and is spending supervised time with the child roughly once a month.
B. The Second Respondent raised concerns in relation to the Applicant’s current compliance with drug and alcohol testing Orders.
I note the following proposals by the parties at the commencement of the final hearing:
·the mother sought orders for sole parental responsibility and for X to return to her care. In the alternative, the mother sought orders for herself and the maternal grandmother to share parental responsibility, for the child to remain living with the maternal grandmother, and for child to spend defined time with her.
·the maternal grandmother sought orders for sole parental responsibility and for X to remain in her care and spend supervised time with the mother.
·the maternal grandfather supported the mother’s proposal; however, in the event that X remained in the maternal grandmother’s care, the maternal grandfather proposed that the child spend time with the mother as determined by the Court and that the time occurs “in the general presence” of himself or the maternal great grandmother.
·the ICL supported the maternal grandmother having sole parental responsibility for X, and for the child to remain in the maternal grandmother’s care. The ICL further proposed that the child spend day only supervised time with the mother initially then slowly graduating to supervised overnight time and thereafter, providing the mother maintained clean drug screens, unsupervised overnight time.
As stated, late on the first listed hearing day, the parties were able to present a comprehensive Minute of final orders that resolved all issues save the question of the ICL’s costs. The final orders clearly reflect and build upon Dr K’s recommendations. As previously noted, the final orders are reproduced in Schedule 1 to these reasons.
ORDERS SOUGHT
As stated, the ICL seeks an order for the parties to pay his costs fixed in the amount of $11,500.
The mother, maternal grandmother and maternal grandfather all oppose the making of the order sought.
DOCUMENTS
The Court read the respective costs notices of the parties.
ICL
The ICL’s cost notice dated 31 October 2023 detailed “costs to date” being $9,570, and estimated costs for a three day final hearing being “barrister’s costs $3,773E” and “ICL’s costs $4,400E”.
As noted previously, although the ICL estimated his total costs to be “$17,743E”, he subsequently amended his total costs to the reduced amount of $11,500 to reflect the settlement of the matter by the very end of the first hearing day.
Mother
The mother’s cost notice dated 1 November 2023 detailed “current costs to date” (including disbursements) being $23,093, of which $18,536 remained unpaid and “estimated costs to final hearing” (including counsel’s fees) at $48,180, with “total incurred and anticipated costs” being $71,272. The costs referred to include Goods and Services Tax (“GST”).
The notice further indicated that the source of the funds received (and to be received) came from “client’s savings” and “loan from family members”. During oral submissions the mother’s counsel stated that the main source of funding had come from the maternal grandfather, and this was subsequently confirmed by the maternal grandfather’s counsel during his oral submissions.
Maternal grandmother
The maternal grandmother’s costs notice dated 31 October 2023 detailed costs “paid to date (NOTING the 2nd respondent received legal aid funding prior to engaging [law firm] $21,714.60 (inc GST)”.
The notice goes on to indicate:
·“Outstanding costs billed but not paid $6,325.60 (inc GST)”
·“Barrister’s costs invoiced to date (paid from funds in trust) $1,375 (inc GST)”
·“Work in progress, not yet billed $ 7,938 (ex GST)”
·“Costs paid to previous solicitor – funded by Legal Aid Nil”
·“Total Estimated Costs if matter runs to final hearing $68,193.20 – $75,193.20” (including counsel’s fees)
·“Source of funds for payment: client’s savings from inheritance”.
Maternal grandfather
The maternal grandfather’s costs notice dated 1 November 2023 detailed “current costs up to 1 November 2023” being “$E47,253”, which includes “work completed and not billed to date $25,500E”.
The notice goes on to indicate “estimate costs for parenting and property [sic] trial $50,000” (including counsel’s fees but not including any other disbursements) and that the source of funds paid, and to be paid, were met by the “client’s savings” and from a ‘loan from family members”.
LAW
Power of the Court to make a costs order
Pursuant to regulation 12.13 of the Family Law Rules, this Court has the power to make an order for costs at any stage in a proceeding.
In family law matters, the Court also needs to consider section 117(1) of the Act, which states the principle that each party shall pay their own costs. The exception to that rule is contained in section 117(2) of the Act, which relates to circumstances where the Court finds there is justification for departing from the principle. This exception is subject to the matters referred to in section 117(2A) of the Act.
Section 117(2A) of the Act states:
“In considering what order, if any, should be made under subsection (2), the Court will have regard to:
(a) The financial circumstances of each of the parties to the proceedings;
(b) Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) The conduct of the parties to the proceedings in relation to the proceedings, including - without limiting the generality of the foregoing - the conduct of the parties in relation to the pleadings, particulars, discovery, inspection, directions to answer questions, admission of the facts, production of documents and similar matters;
(d) Whether the proceedings were necessitated by a failure of a party to the proceedings to comply with the previous orders of the Court;
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) Any such other matters as the Court considers relevant.”
Section 117(2) of the Act also empowers the Court to make a costs order in favour of, or against, an ICL. That said, subsections 117(3), (4) and (5) of the Act are of particular relevance to the issue of costs involving an ICL. Those provisions state:
“(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.
(4A) [omitted]
(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.”
While the wording of section 117(3), quoted above, now makes it clear that an ICL’s costs can be the subject of a costs order, section 117(5) stipulates the Court is required to disregard the fact that the ICL is funded under a Legal Aid scheme. This revised provision was considered by Dawe J in Kest & Olsson [2012] FamCA 148 (“Kest”). In addition, I note that Legal Aid NSW policy requires an ICL to seek an order for costs unless Legal Aid NSW has waived a party’s liability to contribute to the ICL’s costs. This is discussed further below.
In this dispute, it is also clear that section 117(4) has relevance as the maternal grandmother previously enjoyed the benefit of a legal aid grant. I note that I discussed this provision in the case of Theobald & Delancy (No.4) [2012] FMCAfam 1140. That decision involved a claim by the ICL for costs against both a mother and a father in circumstances where the mother had previously benefitted from a legal aid grant earlier in the proceedings and had the financial capacity to pay an equal proportion of the ICL’s costs. At [55] I stated:
… while I am satisfied there is merit in making an order against the mother that she pay one-half of the costs as sought by the ICL, I am also satisfied that I am prevented by s.117(4) from doing so because she is “a party to the proceedings [who] has received legal aid in respect of the proceedings”. Whether this was the policy intent of the Parliament when it amended this provision in 2003 is a moot point and not one upon which this Court proposes to comment further. That said, I am satisfied that had the costs order sought against the mother been legally possible, she would not suffer financial hardship …
In the subsequent case of Gillen & Lindo (No 2) [2021] FedCFamC1F 211, Gill J also considered whether the mother’s previous receipt of legal aid for the family law proceedings was such as to bring her within the prohibition contained in section 117(4)(a), in relation to the payment of ICL’s costs. The Honourable Justice held that even where the mother no longer had a grant of aid, the earlier grant of aid was sufficient to oust the power of the Court to make a costs order against her. At [16] Gill J stated:
In construing the subsection it should be observed that the operative circumstance is unqualified. It does not suggest that the party must currently be in receipt of legal aid, or in receipt of legal aid for a particular portion of the proceedings. It is expressed simply in the past tense.
I note that I raised this particular issue during the oral submissions made by the counsel for the maternal grandmother.
Consequently, the remaining question for the Court to decide is, using the words of Dawe J in Kest:
… in relation to both the mother and the father in these proceedings, whether, considering the provisions of subs (2A), an order for the Independent Children’s Lawyer’s costs to be paid by the father or the mother or both the father and the mother should be considered just[1]
[1] Kest & Olsson [2012] FamCA 148 at [7].
In this matter, and again assuming section 117(4) prevents the Court from making a costs order against the maternal grandmother in favour of the ICL, the Court needs to consider, after a consideration of the provisions of section 117(2A), whether it is ‘just’ for the Court to make an order for the ICL’s costs to be paid by the mother or the maternal grandfather, or both of them, and whether the inability of the Court to make an order that also includes a contribution from the maternal grandmother (and arguably the father as well) is a relevant consideration. I will return to this particular issue shortly.
Quantum of costs payable
In the event that the Court decides that the making of a costs order is just, then, unless the Court specifies otherwise, such costs are to be paid on a “party/party” basis.
“Party/party” costs are costs necessarily incurred, paid at a reasonable rate. Both the Family Law Rules and the Division 2 Family Law Rules incorporate a schedule of costs as a guide to party/party costs in family law proceedings. Party/party costs would not ordinarily cover all the legal costs incurred by a party. In contrast, “solicitor/client” costs or “indemnity” costs are ordered when the Court intends the costs order to cover all the legal costs reasonably incurred by that party.
In NSW, an ICL costs are generally calculated pursuant to the Scale of Fees published by Legal Aid NSW.[2]
[2] See (as at 2 November 2023).
I also note that it is Legal Aid NSW policy that:[3]
[3] Legal Aid NSW, Bulletin 62, May 2022, “Seeking costs as the Independent Children’s Lawyer”: accessed through the National Legal Aid website ( on 2 November 2023).
Unless Legal Aid NSW waives a party’s liability to pay a contribution towards the costs of the independent children’s lawyer, [the ICL] must apply to the court for cost orders. If [the ICL] are of the view that an application for costs should not be made in the circumstances of the matter [the ICL] should contact Legal Aid grants and seek approval not to proceed with an application for costs.
I also note that Legal Aid NSW requires ICLs upon appointment to:[4]
[4] Legal Aid NSW, Bulletin 62, May 2022, “Seeking costs as the Independent Children’s Lawyer”: accessed through the National Legal Aid website ( on 2 November 2023).
… seek an initial contribution towards their costs from the parties to proceedings (currently $1,650 each where there are two parties). When the initial contribution is sought, the parties are provided with the ICL’s costs estimate and are put on notice that the ICL intends to seek a costs order at the conclusion of proceedings.
As noted above, Legal Aid NSW may grant a party a waiver to pay a contribution towards the costs of an ICL in appropriate circumstances. This will require the relevant party to provide legal aid with information and documents that may support a waiver application.
SUBMISSIONS
ICL
Counsel for the ICL submitted that the ICLs costs were modest and that the parties had the financial capacity to jointly pay those costs.
Mother
Counsel for the mother submitted that the mother had limited financial circumstances. He advised the Court that the mother lives with the maternal grandfather and is financially reliant on him. As noted, the mother’s legal costs were largely funded by the maternal grandfather.
Counsel for the mother also asked the Court to note the mother will be required to meet the expenses relating to on-going drug testing as required by the final orders.
Maternal grandmother
Counsel for the maternal grandmother also submitted that her client had limited financial circumstances, was largely reliant on Centrelink benefits, and was living in public housing.
As I noted, the maternal grandmother had been, for a period, in receipt of a grant of legal aid which was subsequently withdrawn or not renewed.
Maternal grandfather
Counsel for the maternal grandfather adopted the submissions made by the mother’s counsel and confirmed that the maternal grandfather had largely assumed financial responsibility for the mother, including the provision of accommodation, the payment of her legal bills, and presumably the costs of drug testing.
He also asked the Court to note that his client had taken on the responsibility of being the primary supervisor of the child’s time with the mother and will continue to do so for a number of years to come as required by the final orders.
DISCUSSION AND FINDINGS
While it is pleasing that the parties were able to resolve their parenting dispute with very comprehensive final orders, the proceedings required the parties, and the ICL, to prepare for a three day final hearing in a complicated inter-family dispute. As previously noted, the Court was also required to hear the dispute on an interim basis in 2020.
It is also clear from the evidence that the parties have incurred, and are responsible for, their own legal costs of these proceedings. In addition, the ICL has also incurred costs for the independent representation of the child.
The mother argues that her limited financial circumstances would suggest that she would find it difficult to meet any costs order at this time, particularly if a lump sum payment was immediately ordered. That said, there was no evidence that the mother had applied for a waiver from Legal Aid NSW and I note the likelihood that the maternal grandfather will meet the legal costs yet to be paid on behalf of the mother. I further note that the mother was represented by counsel on a number of occasions including the listings for interim hearing and the final hearing.
Notwithstanding the above comments, I am satisfied that the appointment of the ICL was appropriate and remained so throughout these proceedings. As has been noted, the ICL has participated in a number of hearings, including one contested interim hearing, in addition to the recent final hearing that was listed for three days but ultimately took just one very long hearing day. The ICL also participated in discussions, negotiations and mediations, in addition to the formal hearings. Moreover, the ICL has also conducted investigations on behalf of the child through the issuing of relevant subpoenas and the examination of relevant documents. The ICL also liaised with and organised the attendance of the Single Expert for the final hearing (despite Dr K not being ultimately required to appear).
Having considered the discrete issue in light of the relevant legislation and rules, the available evidence, and the parties’ submissions, I find that a costs order should be made in favour of the ICL. However, given the unusual circumstances of the case including:
·the maternal grandmother being legally aided for much of the proceedings and no costs order being able to made against her in favour of the ICL;
·the father failing to engage in these proceedings and the Court having no information as to his circumstances;
·the dispute essentially being one between the mother and the maternal grandmother noting that the Court is satisfied that the maternal grandfather only intervened in these proceedings in circumstances where he was attempting to ensure that the child could spend some modest time with him and further noting:
·the mother’s unavailability to spend time with the child (supervised by the maternal grandfather) due to her criminal and health related matters in 2021 and 2022; and
·the historically poor relationship between the maternal grandfather and the maternal grandmother and the failure of the maternal grandmother to agree to the child spending any time with the maternal grandfather prior to the hearing of his interim application; and
·the maternal grandfather taking responsibility for the mother’s past and on-going personal and legal costs;
I am satisfied and find that the Court should only order the mother to be responsible for some, but not all, of the ICLs costs.
As to quantum, I am satisfied that the ICL’s claim is relatively modest. That said, given the abovementioned factors, and the mother’s limited financial circumstances, I will reduce the fixed costs to $5,750 being one half of the amount sought by the ICL. Payment of those fixed costs by the mother will of course be subject to any waiver she may receive from Legal Aid NSW. The Court would encourage the mother to make such a waiver application. I note that the Court was not informed by the ICL that any of the parties had paid an initial contribution to the ICL’s costs.
I am also satisfied and find that, subject to any successful waiver application, the mother should be given a six-month period to pay those costs noting the likelihood that the maternal grandfather may have to do so on the mother’s behalf.
The Court finds accordingly.
CONCLUSION
The Court’s findings have now been stated.
The Court will make Orders for the mother to pay Legal Aid NSW costs fixed in the sum of $5,750 within six months subject to any waiver from Legal Aid NSW.
There will be Orders and Notations of the Court to reflect this decision.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Monahan. Associate:
Dated: 3 November 2023
SCHEDULE 1
Final Orders dated 1 November 2023 and amended on 2 November 2023
THE COURT NOTES THAT:
A.The Court notes the following definitions:
(a)“Mother” means the Applicant mother, Ms Lissa;
(b)“Father” means the Respondent father, Mr Simu;
(c)“Grandmother” means the Second Respondent Maternal Grandmother, Ms Morris;
(d)“Grandfather” means the Third Respondent Maternal Grandfather, Mr Lissa;
(e)“Parties” means the Mother and the Grandmother together;
(f)“Child” or “X” means the mother’s daughter, X, born in 2015 NOTING that X lives with the grandmother;
(g)“School holiday period” means the school holidays for the school at which the child attends, beginning at the conclusion of school on the last day of the school term school until the commencement of school on the first day of the new school term;
(h)“First day of the school term” means the first day of the new school term on which X is required to attend school;
(i)“Last day of the school term” means the conclusion of school on the last day of the school term on which X is required to attend school; and
(j)“Middle day of the school holidays” means the middle day of the school holidays as defined above (if there is an odd number of days in the said school holidays) and if there are two middle days (if there is an even number of days in the said school holidays) the middle day is the first of these two days.
AND THE COURT ORDERS BY CONSENT ON A FINAL BASIS THAT:
1.The grandmother have sole parental responsibility for X.
2.In exercising parental responsibility for X, that the grandmother:
(a)advise the mother in writing of any major long term decision that requires the exercise of parental responsibility with respect to X (“the decision”);
(b)seek the mother’s written response, with the mother to provide such response within seven (7) days of the grandmother advising the mother of the decision that is required to be made;
(c)give due and careful consideration by reference to the best interests of X to any response received from the mother prior to making any final decision; and
(d)advise the Mother in writing as soon as reasonably practicable of the final decision made.
3.X live with the grandmother.
4.From the date of these Orders X spend time with the mother as agreed between the parties and failing agreement as follows:
(a)For 18 months from the date of these Orders: X spend time with the mother each alternate Sunday from 9am to 5pm during school terms and school holidays, commencing 12 November 2023;
(b)From 18 months from the date of these Orders for a further 12 months: X spend time with the mother each alternate weekend from the conclusion of school on Friday (or 3pm if X is not attending school on that day) for one night until 3pm on Saturday, commencing on the second weekend after the last Sunday that X spends with the mother under Order 4(a);
(c)From 30 months from the date of these Orders for a further 12 months: X spend time with the mother each alternate weekend from the conclusion of school on Friday (or 3pm if X is not attending school on that day) for two nights until 5pm on Sunday, commencing on the second weekend after the last weekend that X spends with the mother under Order 4(b);
(d)From 42 months from the date of these Orders: X spend time with the mother each alternate weekend from the conclusion of school on Friday (or 3pm if X is not attending school on that day) for three nights until the commencement of school on Monday (or 9am if X is not attending school on Monday), commencing on the second weekend after the last weekend that X spends with the mother under Order 4(c) (unsupervised);
(e)From the date of these Orders until the conclusion of the 2025/2026 summer school holidays and provided the mother gives the grandmother eight (8) weeks notice in writing of the nominated extra days:
(i)X spend time with the mother for two extra days from 9am to 5pm during each autumn, winter and spring school holiday period, such days to be agreed between the mother and grandmother and failing agreement that the extra days occur before the middle day of the school holidays during odd years and after the middle day of the school holidays during even years;
(ii)X spend time with the mother for four (4) additional days 9am to 5pm during the summer school holiday period, such days to be agreed between the mother and grandmother and failing agreement that the extra days occur before the middle day of the school holidays during odd years (but not on 24, 25, 26 and 31 December) and after the middle day of the school holidays during even years;
(f)From the commencement of term 1 in 2026 and provided the mother gives the grandmother eight (8) weeks notice in writing of the nominated extra days:
(i)X spend time with the mother for up to two extra days and nights (with each day and night being a period of 24 hours commencing 9am) during each autumn, winter and spring school holiday period, such that the extra days occur before the middle day of the school holidays during odd years and after the middle day of the school holidays during even years;
(ii)X spend time with the mother for up to four (4) additional days and nights (with each day and night being a period of 24 hours commencing 9am) during the summer school holiday period, such that the extra days occur before the middle day of the school holidays during odd years (but not on 24, 25, 26 and 31 December) and after the middle day of the school holidays during even years;
(g)X’s time with the mother in Orders 4(a) and 4(b) be supervised by the grandfather, provided he gives an undertaking in the terms set out at the end of these Orders;
(h)X’s time with the mother in Orders 4(e) and 4(f) be supervised by the grandfather for 30 months from the date of these Orders, provided he gives an undertaking in the terms set out at the end of these Orders;
(i)The time arrangements in Orders 4, 4(a), 4(b), 4(c), 4(d), 4(e) and 4(f) are conditional on the mother participating in, and returning negative results for, drug and alcohol testing as set out in Orders 7 to 11;
(j)The time arrangements in Orders 4, 4(a), 4(b), 4(c), 4(d), 4(e) and 4(f) are conditional on the mother’s compliance with Orders 12, 13 and 14 in relation to rehabilitation and mental health treatment;
5.X spend time with the mother on the following special occasions (if she is not already in the mother’s care on that day) as agreed between the parties and failing agreement as follows (“special occasion time”):
(a)the mother’s birthday each year from the conclusion of school to 6pm pm (if a school day) or from 12pm to 5pm (if not a school day);
(b)Good Friday each year from 12pm to 5pm;
(c)Mother’s Day each year from 12pm to 5pm;
(d)X’s birthday each year from the conclusion of school to 6pm (if a school day) or from 12pm to 5pm (if not a school day);
(e)On Christmas Day (25 December) in 2023 and every second year thereafter from 12pm to 5pm;
(f)On Christmas Day (25 December) in 2024 and every second year thereafter from 8am to 1pm;
(g)The time in Orders 5, 5(a), 5(b), 5(c), 5(d), 5(e) and 5(f) be supervised by the grandfather for 30 months from the date of these Orders, provided he gives an undertaking in the terms set out at the end of these Orders;
(h)The time arrangements in Orders 5, 5(a), 5(b), 5(c), 5(d), 5(e) and 5(f) are conditional on the mother participating in, and returning negative results for, drug and alcohol testing as set out in Orders 7 to 11;
(i)The time arrangements in Orders 5, 5(a), 5(b), 5(c), 5(d), 5(e) and 5(f) are conditional on the mother’s compliance with Orders 12, 13 and 14 in relation to rehabilitation and mental health treatment;
(j)where any time arrangements in these Orders conflict with the special occasions above, those conflicting time arrangements are suspended such that the special occasion time occurs instead
6.If the mother fails to participate in a test required by these orders, returns a positive result from the said test, or does not comply with Orders 12, 13 and 14:
(a)The time arrangements in Orders 4 and 5 are suspended and that the mother spend time with X for two hours per fortnight, such time to be supervised by a professional supervisor at the mother’s expense (such supervisor to be either agreed between the parties within 7 days of time being suspended, or failing agreement nominated by the grandmother);
(b)The time in Order 6(a) occur on days and at times nominated by the professional supervisor having regard to X’s schooling and extracurricular activities;
(c)The time arrangements in Order 6(a) occur for no less than three months from the date on which they commenced and continue until the mother returns a negative hair panel test as set out in Orders 7 and 8 below;
(d)The mother pay the contact centre’s fees as and when they fall due.
Drug and alcohol testing
7.The mother participate in hair panel testing as set out in Orders 8 and 9 for two (2) years with the mother to participate in the first such test within three months of the date of these Orders and every six months thereafter such that the mother completes no less than four (4) such tests.
8.The mother participate in hair panel testing at Australian Workplace Drug Testing Services (“AWDTS”) clinic (or other such testing provider agreed between the parties or as nominated by the grandmother’s solicitor should AWDTS be unavailable and the parties cannot agree on another testing provider – “test provider”) as follows (“the hair testing”):
(a)It is REQUESTED that AWDTS or the test provider comply with the following provisions notwithstanding that AWDTS or the test provider are not parties to these proceedings;
(b)The mother make an appointment for and attend for hair collection at an AWDTS Clinic or test provider for hair drug testing purposes;
(c)A qualified and certified staff member of AWDTS or of the test provider (as the case may be) collect the hair sample from the mother (“the sample”);
(d)AWDTS or the test provider apply chain of custody procedures to the sample;
(e)AWDTS or the test provider test the sample so as to cover the six (6) months preceding the date on which the sample was collected;
(f)AWDTS or the test provider conduct the testing of the sample at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory NOTING that in conducting the testing AWDTS or the test provider is to engage a laboratory that is suitable having regard to the type of test required, the specific drug or drugs the sample is to be tested for, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available;
9.To give effect to Order 8 above:
(a)The mother must not cut, bleach or dye her hair such that she is unable to provide a sample suitable for the hair testing;
(b)Within three months of the date of these orders (and otherwise as and when required by these orders), the mother must make an appointment with AWDTS for the purpose of providing a hair sample for hair testing;
(c)In the event that another test provider is to provide the testing the mother must each make an appointment with the said test provider within 72 hours of the mother’s solicitor nominating the said test provider or the parties reaching agreement as to the test provider (whichever applies);
(d)The mother must attend at an AWDTS Clinic or nominee or test provider and submit to the supervised collection of a hair sample from her at the earliest available appointment time offered;
(e)Each party or their legal representatives is at liberty to provide AWDTS or the test provider with a copy of these orders;
(f)The mother must each provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee or test provider to provide the results of each test to the parties and their legal representatives upon receipt of such test results;
(g)The hair test is to screen for alcohol and drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites.
(h)The mother meet the cost of the hair testing;
(i)The mother do all things necessary to cause a copy of the test results to be provided to the grandmother within two (2) business days of the results becoming available.
10.The mother undertake supervised random urinalysis for a period of 30 months from the date of these Orders, such testing to be for the presence of alcohol and illicit substances, and that the mother attend with a test provider for the purpose of such testing within 24 hours of receiving a request by a text message from the grandmother or a written request from the grandmother's solicitors, with such requests to be made no more than once per calendar month and that the mother pay for such tests.
11.DELETED
12.The mother attend and participate in all mental health treatment and rehabilitation programs with which she was engaged as of the date of the final hearing in these proceedings and that the mother continue to attend and participate in such programs until her psychiatrist or the manager of the said program/s provides written confirmation that the mother’s attendance may cease, with the mother to provide a copy of such written confirmation to the grandmother within 24 hours of receipt.
13.The mother cause her mental health treatment and rehabilitation providers (at her expense) to each prepare a letter confirming that the mother is attending upon and compliant with mental health treatment and rehabilitation, with the mother to cause the first such letter to be prepared 12 months from the date of these orders and a second letter to be prepared 24 months from the date of these orders, and that within 7 days of each letter being prepared the mother send a copy of the letter to the grandmother.
14.DELETED
15.DELETED
Restraints
16.The parties communicate with each other in a polite and courteous manner.
17.Unless otherwise agreed between them the parties communicate via text message (or a parenting app if nominated by the grandmother) wherever possible.
18.Each of the parties must not make rude, unpleasant or derogatory comments about the mother or the other grandparent or that person’s family members within X’s presence or hearing.
19.Each of the mother, the grandmother and the grandfather must not permit any other person to make rude, unpleasant or derogatory comments about the mother or other grandparent or that person’s family members within X’s presence or hearing.
20.The mother is restrained by way of injunction from consuming any illicit substances and drugs not prescribed for her by a health practitioner at any time.
21.The mother is restrained by way of injunction from consuming alcohol at any time when X is in her care and for 12 hours prior to the commencement of such time.
22.Without admissions the grandfather is restrained by way of injunction from consuming any illicit substances or alcohol at any time when he supervises X spending time with the mother and for 12 hours prior to the commencement of such supervision.
23.The mother and the grandfather are restrained from:
(a)Causing or allowing X to be in the presence of any person the mother knows or should reasonably suspect is using, consuming or under the influence of any illicit substance, drug of abuse, or excessive amounts of alcohol; and
(b)Causing or allowing X to attend any location the mother knows or should reasonably suspect contains illicit substances, drugs of abuse, drug paraphernalia or where activities relating to drugs and illicit substances are conducted.
24.That:
(a)Other than by written agreement between them, the parties must not take X to any correctional facility, including any facility in which the mother is held in custody (whether while awaiting bail, on remand or pursuant to a custodial sentence); and
(b)If the mother is admitted to a healthcare or rehabilitation facility for more than 7 nights, or is held in a correctional facility (whether while awaiting bail, on remand or pursuant to a custodial sentence) the time arrangements in Orders 4 and 5 are suspended and the time arrangements in Order 23(c) below apply until such time as the mother is released or discharged from the said facility;
(c)If the mother’s time with X is suspended under Order 23(b) that X instead spend time with the grandfather on the second Sunday of each calendar month from 9am until 3pm or such other times agreed between the grandmother and the grandfather.
Changeover and keep informed
25.That:
(a)The mother and/or the grandfather (subject to the supervision requirements in these orders) collect X from the grandmother’s home at the commencement of the time X is to spend with the mother and return X to the grandmother’s home at the conclusion of the time X is to spend with the mother;
(b)When the time arrangements in these orders commence at the conclusion of school (if X is attending school on that day) that the mother and grandfather collect X from school at the commencement of the time X is to spend with the mother and return X to the grandmother’s home at the conclusion of the time X is to spend with the mother;
(c)The mother and the grandfather must not enter the grandmother’s home or the property;
(d)To implement changeover the grandmother (or her nominee) bring X to the mother and/or grandfather’s vehicle and collect X from the mother and/or grandfather’s vehicle (as the case may be).
26.The parties keep each other informed at all times of their residential address, telephone number, email address, Post Office Box details (if applicable), and any other means (for example facebook messenger and whatsapp) that the parties use to communicate and advise the other in writing within 48 hours of any changes to such details.
Education
27.The mother, grandmother and grandfather are each at liberty to attend all school activities relating to X to which parents or carers are invited or otherwise normally attend.
28.The mother and grandmother are both at liberty to attend all school parent-teacher interviews.
29.These Orders authorise any school or education provider at which X attends or is enrolled to communicate with the mother and with the grandmother regarding X’s education and to provide to the mother and the grandmother all information and material that is usually sent to parents.
30.The mother and grandmother each have leave to provide a copy of these orders to X’s school and any other education provider where X attends.
30A.The parties will use their best endeavours to facilitate telephone communication between the mother and X once per week having regard to X’s education and extracurricular activities.
Healthcare
31.In relation to X’s healthcare:
(a)These Orders authorise the health practitioners for X to communicate with the mother and with the grandmother regarding X’s healthcare;
(b)The mother and the grandmother each have leave to provide a copy of these orders to any healthcare provider or health practitioner with which X attends;
(c)The mother and the grandmother each inform the other as soon as practicable of all medical, dental and allied health appointments that they make for X (other than minor or routine medical or dental appointments) together with the name and contact details of the relevant health practitioner;
(d)The mother and the grandmother each inform the other as soon as practicable of all medical, dental and allied health appointments attended by X (other than minor or routine medical or dental appointments) together with the name and contact details of the health practitioner with whom X attended; and
(e)If X requires medical, dental or allied health treatment for an accident or emergency that the mother or the grandmother (whoever has X in their care) inform the other of the said accident or emergency, the details of the hospital or healthcare practitioner providing the care and the associated treatment as soon as practicable.
Passport and overseas travel
32.The grandmother is, by these Orders, authorised to apply for and obtain a passport for X and the requirement for the mother and the father to sign the application for the said passport is dispensed with.
33.Upon X’s passport (whether issued before or after these Orders are made) expiring the grandmother is, by these Orders, authorised to do all acts and things necessary to renew the said passport and the requirement for the Mother and the Father to sign any documents or applications connected with the renewal of the said passport is dispensed with.
34.The grandmother has leave to serve a copy of these Orders on the Australian Passport Office and IT IS REQUESTED that the Australian Passport Office issue a passport for X in accordance with the grandmother’s application and upon the grandmother submitting a renewal application for X’s passport IT IS REQUESTED that the Australian Passport Office issue a renewed passport for X in accordance with the grandmother’s application.
35.The grandmother and (subject to the live with and supervision orders herein) the mother (or “the travelling parent” for the purpose of the following orders) are each permitted to remove X from the Commonwealth of Australia for the purposes of an overseas holiday, education-related travel or to visit relatives (NOTING X has paternal relatives who are Nationality L) (“the travel”) subject to the following:
(a)The travel shall take place during the travelling parent’s time with X as set out in these Orders or between such dates agreed between the parties in writing, with such consent not to be unreasonably withheld for urgent travel;
(b)The travelling parent provide the non-travelling parent with six (6) weeks notice of any overseas travel with X, except where the travel occurs in urgent circumstances or where the need for overseas travel arises within six (6) weeks of the departure date, in which case the travelling parent will provide the non-travelling parent with notice of the travel as soon as practicable after becoming away of the said circumstances or need;
(c)The travelling parent may only take X to (or cause X to travel to) a country or countries that are parties to the Hague Convention on the Civil Aspects of International Child Abduction;
(d)Four (4) weeks prior to the commencement of the travel (or as soon as practicable after the travel is booked if the travel occurs in urgent or emergency circumstances) the travelling parent shall provide the non-travelling parent:
(i)copies of return airline / cruise tickets for the travelling parent and X, such tickets to pertain to the travel;
(ii)an itinerary containing the address and contact details of where the travelling parent will be staying with X during the travel;
(iii)the travelling parent’s contact details such that the non-travelling parent can contact the travelling parent for the duration of the travel;
(e)The travelling parent return to Australia with X at the conclusion of the travel and in the event the mother is the travelling parent that the mother return X’s passport to the grandmother within 7 days of returning to Australia.
Costs and other orders
36.All parenting orders made in these proceedings prior to 1 November 2023 are discharged.
37.Omitted.
38.The mother, the grandmother and the grandfather each pay their own costs of these proceedings.
AND THE COURT FURTHER ORDERS THAT:
39.The final judgment in respect of the Independent Children’s Lawyer’s costs be reserved to a date and time to be fixed for judgement delivery.
40.The Final Hearing listed on 2 and 3 November 2023 be vacated.
AND THE COURT FURTHER NOTES THAT:
B.The grandmother does not have any intention to relocate from Sydney at this time.
C.Paragraphs 1 to 38 and Notations A and B herein, reflect a signed Minute of Consent Orders, the original of which has been placed in the Court file.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
E.Paragraph 30A has been inserted pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
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