LOMBARD & FOSTER
[2015] FCCA 1499
•1 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOMBARD & FOSTER | [2015] FCCA 1499 |
| Catchwords: FAMILY LAW – Parenting – future parenting arrangements – child’s right to a voice in the proceedings – child’s right to participation in the proceedings – consideration of the role of the Independent Children’s Lawyer – failure of the Independent Children’s Lawyer to meet with the children after the release of the family report – impact upon the Court’s resources as a result of the commission of an addendum family report on the second day of hearing. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B(4), 79A, 90MT, 106A, 117 |
| Duffy & Gomes [2015] FCCA 1121 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 Other Articles cited: Ross, Nicola M, ‘Independent Children’s Lawyers: Relational Approaches to Children’s Representation’ (2012) 26(3) Australian Journal of Family Law 220-239 Legal Aid Commission of New South Wales, ‘Practice Standards for Independent Children’s Lawyers in Family Law Matters’, October 2014 Kaspiew R, Carson R, Moore S, De Maio J, Deblaquiere J, Horsfall B, Independent Children’s Lawyers Study: Final report, 2nd edition, June 2014, Australian Institute of Family Studies |
| Applicant: | MS LOMBARD |
| Respondent: | MR FOSTER |
| File Number: | PAC 1789 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 1 May 2015 |
| Date of Last Submission: | 1 May 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 1 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Matthews Folbigg Pty Ltd |
| Counsel for the Respondent: | Mr Schroder |
| Solicitors for the Respondent: | Matthews Dooley & Gibson |
| Solicitors for the Independent Children’s Lawyer: | Mr Nasti of S P Nasti & Co Solicitors |
ORDERS
By consent Ms P shall be joined as a party to the proceedings as the second Respondent.
By consent Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit “A” and “B” attached hereto.
Grant leave to the Independent Children’s Lawyer to make an application for contribution to costs as against each party in the sum of $4,028.50.
Dismiss that Application.
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 these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
EXHIBIT ‘A’
That all prior parenting Orders are discharged.
That the parents shall have equal shared parental responsibility for the care of the children, namely:
(a)X (DOB: (omitted) 2003)
(b)Y (DOB: (omitted) 2005)
(c)Z (DOB: (omitted) 2009).
During school term and each of the short school holiday periods the children shall live with the parents on a week about basis with changeover to occur from after school each Friday or 4pm during school holiday periods.
During Christmas school holidays:
(a)The children shall live with the mother for the first half of all Christmas school holiday periods that commence in years ending in an even year and the 2nd half of all Christmas school holiday periods that commence in years ending in an odd number.
(b)The children shall live with the father for the first half of all Christmas school holiday periods that commence in years ending in an odd number and the for the 2nd half of all Christmas school holiday periods that commence in years ending in an even number.
That the children shall spend alternate Christmas periods with the mother commencing 4pm Christmas Eve to 4pm Christmas day in all years ending in an odd year and the father to have the children for the same period in all years ending in an even number.
That the children shall spend alternate Christmas periods with the mother commencing 4pm Christmas Day until 4pm Boxing Day in all years ending in an even number and the father to have the children for the period in all years ending in an odd number.
The children shall live with the mother from 4pm Easter Saturday until 4pm Easter Sunday in years ending in an odd number.
The children shall live with the father from 4pm Easter Saturday until 4pm Easter Sunday in years ending in an even number.
In the event that the Mother’s Day weekend falls on a weekend when the children are not otherwise in the care of the mother and in the event that the Father’s Day weekend falls on a weekend when the children are not otherwise in the care of the father, the children shall spend the Mother’s Day weekend with the mother and the children shall spend the Father’s Day weekend with the father. For the purpose of this Order the time shall be from 4pm on the Saturday until 4pm on the Sunday of that weekend.
Changeover shall take place at school or as agreed, in writing, but in the event of a non-school day or in the absence of agreement on a non-school day, changeover shall take place by the parent into whose care the children are coming, collecting the children from the home of the other parent.
Within 7 days of the date of these Orders the parties shall do all acts and things necessary to enrol X in the “Anchor program” conducted by Unifam in (omitted) or some other agreed service provider and both parties shall ensure that X is taken to all intake interview and appointments for the purposes of that program.
Both parties shall ensure that X completes the program in accordance with the requirements of the service provider.
So far as it is required by the service provider the parents will participate in the “Anchor program”.
Within 7 days of the date of these Orders the parties shall do all acts and things necessary to enrol in the “Keeping Contact” program conducted by the service provider who X has seen or is seeing for the “Anchor Program” provided for in Order 11.
Both parties shall ensure that they attend all intake interviews and appointments for the purposes of the “Keep in Contact” program.
Both parties shall ensure that they complete the “Keep in Contact” program in accordance with the requirements of the service provider.
The mother shall continue to engage with Dr R or such other treating psychiatrist for such times and at such frequency as might be reasonably requested by the Doctor.
In the event that the parties are unable to agree on an issue relating to the children they will initially engage in Family Dispute Resolution with the assistance of the service provider that conducted the Anchor Program referred to in Order 11, or if that service is unavailable, with an authorised Family Dispute Resolution practitioner.
That each party as soon as practicable notify the other party of any admission by any of the children to a hospital or treatment by a medical practitioner (save as for common ailments) and to provide the said hospital or medical practitioner with all consents necessary for the other party to examine any medical records in relation to the said children.
These Orders shall operate as the necessary authority to the children’s pre-school and/or children’s schools for the school to forward to each parent copies of all school reports and notices in relation to parent teacher interviews, school photographs, concert nights, award presentations, open days, speech nights and sporting events.
That each party keep the other party advised, in writing, of any new residential address within seven (7) days prior to change and any new telephone number within seven (7) days after change.
Within 14 days the parties shall arrange to and then attend upon Dr G and obtain a referral to an allergist for each of the children for the purposes of the children being immunized by vaccine.
Thereafter the parties shall arrange the first available appointment with the allergist referred to in Order 22 with a view to that practitioner administering the children’s vaccinations at a rate and frequency recommended by that practitioner.
The parties are to ensure that the vaccinations administered to the children will be in accordance with the recommendations of the NSW Department of Health for children for the prevention of diseases as specified by that Department.
Each of the parents shall ensure that the children attend upon all scheduled appointments with the allergist to ensure that Orders 23-24 are complied with.
On a “without admissions” basis and in the event that either party fails to comply with Orders 22, 23, 24 or 25 the compliant parent shall have sole parental responsibility for the administration to the children of the vaccinations recommended by the NSW Department of Health with such vaccinations to be administered in accordance with these Orders.
Both parties are restrained from denigrating the other parent, a member of their family or household in the presence or hearing of the children, or any of them, and shall immediately remove the children from the presence or hearing of any third party who does so.
NOTATIONS
A.The parties agree that moving forward they are committed to co-parenting in a way that benefits their children and will ensure that they communicate respectfully in relation to all parenting issues that might arise between them.
B.The parties note that the optimum manner of parenting children after separation is to:
·Reassure your children that you both still love them;
·Remember that accepting and dealing with the separation will enable you to better assist your children to do the same;
·Allow your children the right to love both of you – don’t make them choose;
·Tell your children that they are not to blame and help them to discuss their feelings – they often blame themselves, especially when parents fight about them or things they have done;
·Listen sympathetically to your children’s feelings and opinions without judgement;
·Talk with the other parent about issues relating to your children;
·Make sure your children don’t hear or see you fighting;
·Keep your children out of your arguments with or about the other parent;
·Be positive about the other parent when talking to your children;
·Turn to other adults for emotional support rather than to your children;
·Talk with your children’s teachers so they understand the situation keeps your focus on your children’s well-being rather than on what is ‘fair’ for you.
Both are committed to parenting the children in this way.
EXHIBIT ‘B’
That the Husband pay to the Wife the sum of $170,000 within two (2) months of the date of these Orders.
That upon the payment pursuant to Order 1 herein the Wife transfer to the Husband all her right, title and interest in the former matrimonial home situated at and known as Property R being the land described in Folio Identifier (omitted) (hereinafter referred to as “the Property R property”) by providing to the other party a duly stamped and executed Memorandum of Transfer.
That upon the transfer in accordance with Order 2 herein the Husband refinance the mortgage over the former matrimonial home into his name solely. The husband shall be responsible for all outgoings of the property, shall indemnify and keep indemnified the wife as to the same.
That should the husband fail to pay the amount specified in Order 1 herein within the time stipulated then each party immediately do all acts and things and sign all documents necessary to list the property for sale by private treaty with a real estate agent agreed between the parties and at a price agreed between the parties or failing agreement within fourteen (14) days after the failure to comply with Order 1 herein then as determined by the President from time to time of the New South Wales Division of the Real Estate Institute of Australia or his nominee as an expert not as arbitrator.
That if the said property is not sold within three (3) months after the date of listing pursuant to Order 4 herein then each party forthwith do all acts and things and sign all documents necessary to list the said property for sale by public auction with an auctioneer agreed between the parties and at a reserve price agreed between the parties or failing agreement as determined by the President from time to time of the New South Wales Division of the Real Estate Institute of Australia or his nominee as an expert not an arbitrator on the following conditions:
(a)That the Husband and Wife each pay one half of the fees payable to such auctioneers immediately upon request by such auctioneers;
(b)That the parties attend the auction sale and in the event that the reserve price is not received negotiate with the highest bidder;
(c)That each party co-operate in every way with the auctioneers in relation to the auction of the said property;
(d)That each party execute all documents necessary to complete the sale;
In the event that the property is not sold by public auction as provided for above then the property is to be relisted on the market for sale by private treaty with a real estate agent agreed between the parties and at a price agreed between the parties or failing agreement within fourteen (14) days after the auction then as determined by the President from time to time of the New South Wales Division of the Real Estate Institute of Australia or his nominee as an expert not as an arbitrator.
That the proceeds of sale of the former matrimonial home be disbursed as follows:
(a)In payment of the costs of sale including real estate agent's fees, legal fees and auctioneer's fees, if any;
(b)In payment of the mortgage to (omitted) Bank;
(c)In payment of any rate adjustments as at the date of sale;
(d)In payment of 22% of the balance to Ms P;
(e)In payment to the Wife of 55% of the balance of the proceeds of sale;
(f)In payment of the balance to the Husband.
That the Court allocate, pursuant to Section 90MT(4) of the Family Law Act 1975 a "base amount" of $25,000.00 to the Wife out of the Husband's interest in the (omitted) Super, (omitted) Super Plan.
That in accordance with Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittible payment becomes payable from the Husband's interest in the (omitted) Super – (omitted) Super Plan the Trustee of the (omitted) Super – (omitted) Super Plan shall pay to the Wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the "base amount" of $25,000.00 and that there be a corresponding reduction in the entitlement that the Husband would have in the (omitted) Super – (omitted) Super Plan but for these Orders.
That the operative time for Order 9 be four (4) business days from the date a sealed copy of these Orders is served on the Trustee of the (omitted) Super – (omitted) Super Plan.
That Order 9 takes effects from the operative time.
That pursuant to Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittible payment becomes payable in respect of the Husband's interest in the (omitted) Fund (“the self-managed superannuation fund), the Wife shall be entitled to be paid an amount calculated in accordance with the Regulations, using a base amount at the date of these Orders in the sum of $145,936.00 and there be a corresponding reduction in the entitlement the Husband would have had in the (omitted) Fund but for this Order.
That the Husband shall do all things necessary, but not limited to exercising his request for the transfer of the sum of $145,936.00 from the (omitted) Fund to a fund of the Wife's choice.
That having been accorded procedural fairness, these Orders bind the Trustee to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
The operative time for these Orders is four (4) business days from the date a sealed copy of these Orders is served on the Trustee of the (omitted) Fund.
The Husband as Trustee of the (omitted) Fund acknowledge that he has been accorded procedural fairness.
That within twenty one (21) days of the date of these Orders the Wife shall resign as a Trustee of the (omitted) Fund and the Husband shall otherwise indemnify the Wife in relation to all claims and demands arising from her management of and membership of the fund.
That within twenty eight (28) days of the date of these Orders the Wife sign all documents and do all things necessary to assign to the Husband her interest in the Foster and Lombard Family Trust.
That within twenty eight (28) days of the date of these Orders the parties sign all documents and do all things necessary to deregister, (omitted) Pty Ltd and (omitted) Pty Ltd and the husband shall be responsible for the costs associated with this.
That each party be declared the sole owner in law and equity of motor vehicles, all items of personalty, chattels and financial resources in their name, possession or control and not otherwise deal with in these Orders including but not limited to bank accounts, any choses in action and superannuation benefits.
That in the event that either party refuses or neglects to execute any deed or instrument the Registrar or Deputy Registrar of the Court making these Orders is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument upon being satisfied by Affidavit of such neglect or refusal. A party shall be deemed to be in default if that party refuses or neglects to sign any document within seven (7) days of being requested to execute that document, such request being made in writing.
That the parties be hereby granted leave to restore this matter to the list on seven (7) days’ notice with respect to the implementation of these Orders.
The Court notes and the parties agree that the majority of the funds necessary to satisfy Orders 12-14 are located outside of the Commonwealth of Australia and will need to be repatriated to satisfy these Orders.
The husband shall do all acts and things necessary including signing any documents to ensure the funds necessary to comply with Orders 12-14 are repatriated to the Commonwealth of Australia so as comply with these Orders.
If in fact the funds necessary to satisfy Orders 12-14 are not repatriated to Australia in compliance with these Orders, the wife shall be paid interest on the outstanding monies with such interest to be calculated in accordance with the Act.
In the event that there is noncompliance with Orders 12-14 within 6 months of the date of the making of these orders these orders shall be set aside pursuant to Section 79A of the Family Law Act 1975 (Cth).
The Court notes and the parties agree that these Orders provide for the wife to receive 55% of the assets of the parties.
IT IS NOTED that publication of this judgment under the pseudonym Lombard & Foster is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
PAC 1789 of 2013
| MS LOMBARD |
Applicant
And
| MR FOSTER |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to both property adjustment and future parenting arrangements of three children, namely:
X born (omitted) 2003 (shortly to turn 12 years of age);
Y born (omitted) 2005 (shortly to turn 10 years of age); and
Z born (omitted) 2009 (shortly to turn six years of age).
The interests of the three children are independently represented in the proceedings.
Each of the parties, being the children’s mother, Ms Lombard, the Applicant, and their father, Mr Foster, the Respondent, are represented.
The proceedings have some little history, having been before the Court as at today’s date for two years and one day. That is, sadly, not uncommon and cannot be addressed with present resources.
The matter was commenced by an Application Initiating Proceedings filed 30 August 2013. After a number of Court events, at which a number of interim Orders have been made, all by consent, and a Family Report prepared, the matter was listed for trial for three days to commence 29 April 2015 and to continue for three days or until completion.
Ultimately, and thankfully, the proceedings have today, the third day of trial, resolved. Orders will shortly be made by consent which will resolve all issues both parenting and property adjustment. It is an abundant credit to these parties that they have been able to reach that outcome.
I do not propose to canvass the evidence in any great detail and I will endeavour to confine this consideration to issues that are relevant to that which must be addressed at the conclusion of the matter.
When the proceedings were first called on for hearing 29 April 2015, there was some confidence expressed by Counsel for each party and the Independent Children’s Lawyer that the matter could be contained to two days rather than requiring three days of hearing. I make clear that some time on the first and second day was lost whilst the Court attended to other business, a regrettable reality of the resources of the Court and workloads, matters being listed routinely at three to four hundred per cent over listing ratios. However, the time lost to other matters was not vast and would, in reality, total something in the order of two hours to two and a half hours in total.
Counsel for the parties also indicated at the outset of the trial that property adjustment issues had been the subject of significant discussion and would, in all probability, be resolved without the need for any determination by the Court.
Some slight complication arose with respect to the property adjustment proceedings in that to obtain enforcement of any Order for payment of cash by Mr Foster to Ms Lombard, it is necessary to have provision, by way of default, for the sale of a parcel of real estate which is primarily held by the parties but also with an interest held and a grant of fee simple therein to Mr Foster’s mother, Ms P.
Thus, it will be necessary, in addition to the Orders that the parties agree upon, to make a formal Order joining Ms Foster as a party. Ms Foster is not present at Court, but has indicated, having been contacted by telephone, her consent to that course and to the Orders which she has signed. Ms Foster is also of some relevance and significance to the parenting proceedings, having a close relationship with the children and regular involvement in their day to day activities and having been included in family report interviews. However, no further consideration of that relationship need occur as the matter is settled and I can leave that relationship to one side without being dismissive of it.
At the conclusion of the proceedings an Application for Costs is made by the Independent Children’s Lawyer. There is no criticism that the Application is made. However, reasons must be given to deal with it. In doing so I propose to address a number of matters with respect to the conduct of the proceedings and which have occurred and which have had some role to play, no doubt, whether positively, negatively or both, in the compromise that has now been reached between the parties.
As indicated above, Counsel for the parties had indicated optimism that the hearing could be completed within two days. That might, to the casual reader of these reasons, beg the question as to why the matter is here before the Court today on its third day and suggesting that such optimism was misplaced. Partially that arises from the time lost in dealing with other business, but it also arises from a number of issues relating to the preparation of evidence particularly the Family Report. I propose to canvass, thus, the history relating to that report and this trial.
It should also be observed that at the outset of the matter today, called at approximately 10.15am, the parties had sought from the Court some advice as to when further hearing dates might be made available to the proceedings if, as was readily apparent was a reality, the proceedings could not be concluded today. Indeed, the Court could have extended its sitting hours to include the entire weekend and the matter would not likely have finished through no fault of the parties.
In the proceedings, each of the Counsel representing the parties and the interests of the children provided a Case Outline document which set out the material which was filed and relied upon. I make clear that all of that material has been read and considered, although I need not address most of that evidence as regards these reasons.
At this point of the matter, effectively the conclusion of day 3, the wife’s cross-examination, she being the Applicant had not completed. Counsel for Mr Foster had cross-examined Ms Lombard eruditely and with respect to relevant issues. Various other matters have intervened to preclude that cross-examination from concluding.
A witness in Ms Lombard’s case, her treating psychiatrist, Dr R, has been cross-examined to completion and her evidence completed. Indeed, that evidence having been taken I had indicated earlier today that as the good doctor’s evidence was largely unshaken following cross-examination, that in all probability (and subject to such further submissions as the parties or Independent Children’s Lawyer may have wished to make), any issue or concern as to Ms Lombard’s present mental health and capacity to parent or meet her own needs was put to rest. That may have played some role in the desire of the parties to discuss resolution and conclude the proceedings. The Court will never know, nor should it, those matters being related to settlement negotiation and protected by section 131 of the Evidence Act 1995.
The factors which may have negatively impacted upon the parties in terms of their consent to Orders, although I commend them for the effort that they have made in reaching a sensible compromise of that controversy, relates to the further prospect of delay and cost.
Each of these parties, having been made aware earlier today that the proceedings would be adjourned for a period of seven months (being the first mutually convenient dates that could be found), no doubt would have turned their mind very quickly and sharply to reflect upon the utility and efficacy of seven further months of anxiety and uncertainty being endured by them and their children and the impact that this would have upon them, the eldest of these children X, in particular, having already attended some counselling in the past and there being some lingering concern as to her predisposition to anxiety and affect by stress.
The parties’ communication and ability to co-parent would, no doubt, also be significantly impacted by that delay and the lingering resentments that would arise therefrom. The parties thus are commended, even though there may have been, as it were, a forthright resignation to such delay, for having turned their minds so effectively to the resolution of all issues. Each party would otherwise have been quite clear and quite clearly advised by their Counsel that the further adjournment would render it possible, if not probable, that there would be a need to reopen evidence, give further evidence as to such further events as might arise and that they would thus be involved in further costly, time-consuming and rancorous litigation which would impact upon them, their children and their capacity to cooperate and co-parent.
Recently I have had cause to deliver an interim judgment in a matter of Duffy & Gomes [2015] FCCA 1121 regarding matters of a similar nature to those which have caused concern in these proceedings. I will turn to those reasons shortly and incorporate portions thereof.
The issue that has arisen and which has caused some further delay in the progress and which has prohibited completion of these proceedings has arisen through and following the release of a Family Report and in particular the children’s awareness of its contents and the reported expression of the children’s views, particularly young X’s, in that report.
These children have now been engaged in or aware of three family consultancy events.
A Child Dispute Conference occurred on 4 July 2013. That Conference involved the parties rather than the children but the Memo produced made certain recommendations with respect to the children. That led to the children’s involvement in a number of programs and the children’s clear awareness of their parents’ dispute.
On 9 December 2013, an Order for the preparation of a Family Report was made. On 1 September 2014 that report was completed. The report was released to the parties by Order made in Chambers 3 September 2014. The parties and the Independent Children’s Lawyer have thus had that report for some seven months before the hearing.
The report sets out the parties’ positions, their concerns and their proposals. It also, importantly, involves interviews with all three children, although the youngest Z was not formally interviewed at that time, although observed.
The interview with X is detailed commencing at paragraph 51 of the report. The interview with Y is set out commencing at paragraph 57 and discussion with respect to Z is confined to a single paragraph, in light of the lack of forensic interview of him, being paragraph 60.
Observations of the children with their father and paternal grandmother are then set out commencing at paragraph 61 and observations of the children with their mother and maternal grandmother, who is not and was not proposed to be called as a witness in the proceedings, is set out at paragraph 69.
At paragraph 75, an evaluation is undertaken by the Family Consultant and recommendations are then made at the conclusion of the report at paragraph 86.
In relation to X, she is reported by the Family Report writer to have made certain statements which have become the subject of some controversy. She is noted as being friendly and compliant. Indeed, that is entirely consistent with the evidence of her parents. She would appear to be a delightful young woman.
She gives certain indications with respect to preference, if it might be so described, for her future living arrangements and gives some degree of reasoning as to why those views are expressed by her. She does make very clear, as would no doubt and should be heartening to both parents, that she loves them each and has a genuine desire to spend time with each. A preference is, however, suggested to be expressed.
Y expresses a preference also, but it is a preference that is somewhat, if not entirely, contrary to the preference that is expressed by X, thus giving rise to some internal difficulty as to reliance upon the children’s views consistently supporting any particular outcome. I am also conscious, in the case of Y, of a diagnosis of autism spectrum disorder subsequent to the report’s completion.
In light of those factors and the children’s ages it is difficult to see how one might place any weight upon the children’s suggested views and achieve an outcome that would meet the needs of the children when their views would appear to depart significantly each from the other.
At the outset of the case, I had also inquired as to whether the children had been met by the Independent Children’s Lawyer following release of the Family Report. It transpired that they had not. The children had most assuredly been met, although early in the proceedings, the Order for the appointment of the Independent Children’s Lawyer having been made on the first return date of the matter.
Arrangements were made for the parties to bring these children to the Court on the first day of trial, a school day and thus uplifting them from their schools, so that they could meet with the Independent Children’s Lawyer representing their interests. The children were met during the lunch adjournment, in the case of X, and after the end of the day’s sittings as regards the two younger children.
As a consequence of those meetings and that which transpired therein, (the contents of which are not known nor need be known by the Court), certain communications occurred between Counsel for the parties and the Independent Children’s Lawyer. Following thereupon, enquiries were made by the Independent Children’s Lawyer of the Family Consultancy service and application made to the Court for an Order to commission a further report, confined to meeting further with the children and some eight to nine months after the first set of interviews. Those interviews were arranged with significant reorganising within the Family Consultancy service to accommodate the Court’s request and the need to attempt to complete the proceedings.
That report became available at approximately 2.30pm on the second day of the hearing. That by and of itself gives rise to some serious concern both as to trial process and due process.
The report became available at a time when the mother was in cross-examination and thus her Counsel was significantly impeded in their ability to appropriately and effectively obtain her instructions. Leave was sought and most graciously and appropriately consent was given by Counsel for the Respondent to enable that to occur. However, that involved the matter then being stood in the list for a further period of time to permit that conference between Counsel and client.
It is entirely problematic as regards the conduct of the case for fresh evidence to be produced whilst the mother is in cross-examination. The trial had commenced and fresh evidence produced on the afternoon of what – based upon the optimism expressed at the commencement of the case – would have been the final day of trial.
Upon completion of Ms Lombard’s cross examination by Mr Foster's Counsel and by the Independent Children’s Lawyer, it then being the morning of day 3 of the trial, I raised with the parties and the Independent Children’s Lawyer the reality that the mother would need the opportunity of a conference with her Counsel to discuss the new report and the real possibility that her Counsel would then need to recall her to reopen her evidence and, if so, the potential need to reopen her cross-examination.
That process would, at the very least, have been messy, if not having had the very real possibility to create major difficulties with the integrity of the evidence, and more importantly, the process itself. The parties could not be expected to have anything but reservation as to the process, it affording due process to them in light of the comings and goings that have happened, Ms Lombard having entered and left the witness box on at least five occasions, sometimes with breaks for scheduled events such as lunch, but also to enable further discussion and instruction to be taken or children to meet with the Independent Children’s Lawyer.
These are matters of concern and I raise them at this point as they are relevant to the Costs Application I must determine and perhaps also to seek to ensure that best practice models can be developed that will avoid such difficulties in the future.
I have referred to my decision some weeks ago in Duffy & Gomes. I incorporate therein from paragraphs 77 to 89, 92, 104 to 108, and 111 to 120 inclusive those portions being under the heading “The role of the Independent Children’s Lawyer” and canvassing therein academic research with respect to that role by authors such as Ross, Bell, Parkinson and Cashmore, Chisholm and others.
77. Much recent research has been devoted to the role of the Independent Children’s Lawyer. I will touch upon some of that research briefly.
78. Nicola Ross has identified in her paper ‘Independent Children’s Lawyers: Relational Approaches to Children’s Representation’ (2012) 26(3) Australian Journal of Family Law 220-239 as follows:
Although ICLs are well placed to play a role in proceedings that goes beyond ensuring that there is an expert report about a child’s views before the court, research suggests that children often do not feel as though they have been heard, even when they have been seen by a family consultant or other expert, and are represented by an ICL. This reflects a central concern for family law: how to hear children’s voices, give their views appropriate weight in the decision-making process and ensure that children feel that they have actually been heard. Taking account of children’s perspectives can have beneficial effects on children’s mental health, coping capacity and development and can contribute to better, more realistic decisions being made.
79. That is spoken to further in Dr Ross’ research, wherein she refers particularly to the research of Kaspiew, Hay, Lang as well as research by Parkinson and Cashmore and by Chisholm, all highly regarded authors and/or jurists, regarding that very issue and including research surveying children and parents regarding their satisfaction with the discharge of the Independent Children’s Lawyer of their role.
8. The mother in her cross-examination has already given some clues towards the path that such dissatisfaction might be suggested to take. The mother had indicated in the latter portions of her cross‑examination that the children had been reluctant to attend the Family Report interviews, particularly the second Family Report interviews as, “they had done it all before and they do not see anything happening or changing”.
81. This delay certainly is not going to assist the children’s views in that regard.
82. Children have a right, as Article 12 of the International Convention on the Rights of the Child provides to participate and have their voice heard. Article 12 provides:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative [emphasis added] or an appropriate body, in a manner consistent with the procedural rules of national law.
83. It is concerning, as regards participation of these children, 15 and 13 years of age, that they have met their representative once and nearly two years ago. Two Family Reports have been prepared and the children have not spoken with the representative of their interests after the release of those reports.
84. Since the children’s singular meeting with the Independent Children’s Lawyer there have been significant issues and allegations raised in these proceedings and which have been the subject of investigation by Police and the Department of Human Services and the subject of two Family Reports.
85. The children have not met with their representative since the latter part of 2013 notwithstanding all of those events. It is unacceptable in the extreme that it would be so.
86. Dr Ross’ paper also related the following:
A related concern involves procedural fairness and Australia’s obligations under Article 12 of the Convention on the Rights of the Child to ensure children have opportunities to express a view and have it taken into account.
87. It must be noted that at the time of Ms Ross’ article, stemming from the completion of her PhD research, Article 12 and the entirety of the International Convention, had not been incorporated into the Family Law Act. It has now been, and had been in June 2012 prior to the appointment of the Independent Children’s Lawyer.
88. Dr Ross had also observed as follows:
Canadian, US and Australian research all suggests that children’s lawyers are gatekeepers in relation to participation.
It continued:
Parkinson and Cashmore’s study suggested different reasons for listening to children; either because children had “something important to tell us that may change the decisions we make on their behalf” or because empowering them benefited them, in that it allowed them to be active agents and not merely passive spectators in the process of making decisions. These rationales appear to be more consistent with the aim of supporting children’s “voice” and right to be heard in proceedings.
89. It must be observed, as indeed, the ‘National Legal Aid Guidelines for Independent Children’s Lawyers’ make clear, that it is the call of the Independent Children’s Lawyer to determine when, how or if children are met and whether they are met repeatedly, for different events or for different purposes. I do not cavil with that.
92. Surely the day has come when children of this age, 15 and 13, have a right to have various propositions raised with them commencing with the right to meet with the person representing their interests and to discuss the contents of the Family Report and the recommendations contained therein.
104. In dealing with that issue, I note that the recent AIFS study had raised a number of issues regarding the role of the Independent Children’s Lawyer and, in particular, regarding the view of participation. The AIFS study in its executive summary concluded:
The ICLs role in facilitating a child’s participation is of less significance than the evidence-gathering and litigation management functions.
105. Two important matters arise therefrom. Firstly, that is the conclusion drawn from the survey of ICLs themselves, Judicial Officers, non-ICL lawyers, and non-legal professionals. It is not a statement of fact. Secondly, to the extent that this attitude is expressed, it is not held by me. 15 and 13 year old adolescents have a right to participation. It is enshrined in International law and incorporated into domestic law.
106. The right to participation is not a right that can be given life or meaning without active engagement with the child - meeting them, explaining their options to them and giving them the opportunity to participate how and should they wish.
107. It may be that these children do not wish to be more actively involved in these proceedings, expressing as they do to the Family Consultant, and consistent with the mother’s cross-examination, a weariness with their involvement in their parents’ disputes to date. That can be well understood. But it may be, as Parkinson and Cashmore have described, or indeed, as the AIFS report alludes to, that something of real value might be given to these children or to the decision-making process of the Court, if participation were viewed as a more important factor or, in this case, as a factor at all.
108. It is also indicated in the AIFS study:
It is clear that the role of the ICL is valued, particularly by judges (I pause to note that this statement is well-made and well-accepted by me) for bringing an independent, impartial and child-focused perspective to the way in which a matter is litigated, especially from an evidence-gathering perspective.
111. The AIFS report also makes clear the same criticisms as highlighted by Ross, Fernando, Bell, Cashmore and Parkinson and others, namely:
A very significant theme in the data from parents, children and young people is their understanding that the focus of the role of the ICL emphasises functions supportive of participation. … Most of the children and young people interviewed conveyed feelings of disappointment and even betrayal in relation to their experiences with the ICL. The accounts of these children and young people indicate that often they were uncertain about what the ICL did, were disappointed by little or no contact with the ICL, and were uncertain as to how their views fed into the decision eventually made.
112. Whether these children hold such views or will do so in future and following the determination of these proceedings, particularly if determined in a fashion inconsistent with their expressed views and perceptions, is unclear. The groundwork is certainly well-laid for that to be a valid complaint by them.
113. In returning to the ‘National Legal Aid Guidelines for Independent Children’s Lawyers’, at paragraph 5.3, it is made clear that:
The ICL should seek to provide the child with the opportunity to express his or her views in circumstances that are free from the influence of others.
The ICL should ensure that there are opportunities for the child to be advised about significant developments in his or her matter if the child so wishes, and should ensure that the child has the opportunity to express any further view or any refinement or change to previously expressed views.
114. That causes some degree of concern, particularly weighted against the concluding portions of the paragraph, namely:
In preparing to make submissions on the evidence as to the weight to be placed on the views of the child, the ICL may consult with the single expert, Family Consultant or other relevant expert in relation to the content of the child's views; the contexts in which those views both arise and are expressed (together with other matters enumerated therein).
115. I do not seek to suggest, as I do not know, that there has been no consultation with the Family Report writer. However, there has clearly been no consultation with these adolescent children.
116. In the first Family Report these children were suggested to have expressed a relatively clear view, particularly the younger child, as to the time that they wish to spend with their father. In the first report the children sought and supported far more abundant time with the father than they did at the time of the second report wherein they are suggested to indicate that they either wish to spend no time or spend time only in accordance with their wishes.
117. In light of the problematic relationship between the parents and their inability to effectively communicate, it would seem, since separation, but certainly at present that these children’s interests could not be properly represented or presented to the Court without their having been met with the Independent Children’s Lawyer in the last two years and since the reports have been prepared.
118. Under the heading “Meeting the Child”, the “Independent Children’s Lawyer Guidelines” make clear that the Independent Children’s Lawyer is expected to meet with children, (although that is potentially a pejorative term for these young adolescents), unless there are exceptional circumstances. Again, I make clear that this is a forensic decision for the Independent Children’s Lawyer in each and every case - to determine whether a meeting occurs and, if so, when, how, where and how often.
119. I am conscious that the New South Wales Legal Aid Commission makes specific provision for additional funding for children to be met in furtherance of this expectation.
120. Certainly, these children have been met, but only once, and some little time ago, before the majority of issues relevant at trial and the evidence prepared with respect thereto has come into being.
The National Legal Aid Guidelines for the independent representation of children’s interests speaks directly, (as does the above research and portions of Judgment incorporated), to Article 12 of the International Convention on the Rights of the Child and the child’s right to have a voice in proceedings and to participate. It is particularly noteworthy that at the completion of the recent Attorney-General-instigated study undertaken by Kaspiew and others that the role of the Independent Children’s Lawyer in facilitating the child’s participation was noted as no less significant than evidence-gathering and litigation management.
With respect to the Family Report what has ultimately transpired, leading to the Addendum Report, arises from the mother’s evidence in relation to that reported of X by the report writer. Certainly the parties have the opportunity and would, as a matter of course, to be cross-examined as to whether they have been accurately reported or misreported by the report writer. Ms Lombard’s evidence suggests that young X has become distressed since she has become aware of the contents of the Family Report, (although the evidence is entirely unclear as to how she became aware of it), that her views have been misrepresented or misinterpreted by the report writer.
That issue does not require determination by me. Whilst it is raised in the mother’s evidence I make clear that this is not to accept her evidence as proven nor disproven. It is unnecessary and unsafe for me to seek to enquire further into those issues. The case was not completed. The mother’s cross-examination was, potentially, not completed. The father’s case had not even begun. Now, thankfully, it will not commence.
The mother’s evidence, taking it on its face, made clear that the child’s views were very different, both at the time of the initial interviews by the Family Report writer (June/July 2014) and at present.
The Addendum Report in relation to X commences by stating that X had declared to the Family Report writer “in persuasive NAPLAN style” that she wanted to live in an equal time arrangement. That is somewhat different to that which the Family Report writer had perceived as the child’s views – and I use that term not to create, but to seek to avoid controversy – at the first interview wherein it was perceived that she expressed a preference to live with her father predominantly. Indeed, X is suggested to have now indicated, “I strongly disagree with my father’s idea”.
The Addendum Report, as to which the author has not been cross-examined (nor for that matter has the mother or the father), gives rise to an additional issue which gives potential for future resentment, if not conflict, between these parties, i.e. the suggestion that Ms Lombard or some other person may have engaged in some persuasive discussion with the child or these children regarding the report. Again, I need not become embroiled in that controversy. I refer to those issues only to highlight the mess that the evidence has become as a consequence of the need to commission this second report, let alone the vast drain upon Court resources that it has represented. Whilst it is a drain, the children’s best interests required its commissioning, and to that extent the Court’s resources are well used.
I am also conscious, from a positive perspective rather than a potentially negative one, that the parties may, upon release of this Addendum Report, have taken it into account, have taken it on its face as regards the child’s views and desired to reopen negotiation having heard and taken into account their daughter’s “voice”. Whether they have or not I accept that they have at least reflected upon the consequences of proceeding with litigation and have used the Family Report as a tool or one of the many tools, aided most abundantly by their Counsel to now reach an agreement.
If the second Family Report has been an instrument of resolution, then it is regrettable that it was commissioned on the second day of hearing. If there was to be controversy as to the child’s views, whether they were accurately reported or not, it would have been preferable, indeed, highly desirable, for that to have been ascertained shortly after the release of the report seven months prior to trial and before trial dates were allocated rather than during the course of the hearing itself. Thus, the issue that arises is the involvement of the child and their engagement with those representing their interests.
The ‘National Legal Aid Guidelines for Independent Children’s Lawyers’, 6 December 2007 provides in Chapter 5.1 that the Independent Children’s Lawyer must assist the child by explaining their role, including “how the child can have a say and make his or her views known during the process”. Whilst it is not readily apparent from the Guideline – and for good reason – is that plural meetings with a child during the period of appointment might be envisaged. Clearly plural meetings are within the scope of that phrase “during the process”.
These proceedings having been on foot for two years. There has certainly been scope, particularly with respect to young X, nearly 12 years old, for these children or at least X, to have had greater opportunity to express her views. One ponders whether, if the report had been made known to her by those representing her interests, whether she might at that point, as Ms Lombard asserts is the case, have been very quick and ready to identify that she had been misunderstood or misrepresented. It may be that she may have indicated something altogether different. Such a meeting may have suggested other courses of action, protective or otherwise. However, we will never know, as such a meeting did not occur.
The Guideline continues to provide that:
Where a child of sufficient maturity wishes to have a direct representative who will act on the child’s instructions, the ICL should inform the child of the possibility of applying to become a party to the proceedings.
I do not, for one moment, suggest that such an Application should have been made or could have even been contemplated as appropriate. However, what is intended to be conveyed thereby, I am satisfied, is the importance of the very issue that Kaspiew and others have commented upon in the ‘Independent Children’s Lawyers Study: Final Report’, 2nd Edition, June 2014, Australian Institute of Family Studies (AIFS Report), the child’s right to “participation”. The Guideline concludes with a direction that the child should be given information as to how they can contact those representing their interests.
At paragraph 5.3 of the National Guidelines the following is stated:
The ICL should ensure that there are opportunities (plural – emphasis added) for the child to be advised about significant developments in his or her matter if the child so wishes, and should ensure that the child has the opportunity to express any further view, or any refinement or change to previously expressed views.
That direction would appear particularly apt in the context of this case, particularly as regards X.
It should be observed that Y has been consistent throughout in his views. What has also become apparent from the Addendum Report is that young Z, not initially interviewed, but interviewed on this occasion, has also expressed a view which, whilst it would have been far from dispositive, would have had some importance, and particularly sufficient importance for the Court to be aware of it.
Part 5.3 of the Guidelines also provides:
The ICL is to ensure that any views expressed by the child are fully put before the Court and as far as possible, are in admissible form. This includes views that the ICL may consider trivial but the child considers important.
One could not imagine using terminology such as “trivial” as regards the expression of a nearly 12 year old girl as to her future living arrangements, particularly in the circumstances of these children having experienced a significant deterioration in their mother’s health at or about the time of separation and having lived for some years now in an equal time arrangement between their parents, the amendment or variation of which was the subject matter of the proceedings.
In Part 5.4 of the guidelines, under the heading “Making submissions contrary to the child’s views”, the Independent Children’s Lawyer is directed to, “advise the child that he or she intends to make submissions contrary to their views”.
No submission has been put that is contrary to the children’s views, and to some extent that point is mute. However, what is intended by the Guideline, I am satisfied, is to signal the importance of discussing with children that which will be put as being in their best interests when matters reach trial. The child cannot know what is to be put to the Court if they are not told and the Independent Children’s Lawyer cannot know if it is contrary to the child’s views unless it is ventured and explored with the child.
The mother’s evidence, as I have indicated, raises significant issues that would suggest that any submission that would have been in support of a variation of arrangements may have been contrary to the child’s views on the basis of the suggested changed or misunderstood views initially advanced.
Part 6.5 of the Guidelines under the heading “Case planning” directs that the Independent Children’s Lawyer should, “develop opportunities for the matter to reach an agreed outcome which best promotes the children’s best interests”.
If the children’s views had been misrepresented, misunderstood, or had simply changed, whether through active coercion or any other instrument or circumstance, clearly that reality being put before the Court and to the parties in admissible form would have been that which might have best facilitated an agreed outcome. Certainly, it has been achieved today, and that is thankful not only to spare these parties further rancorous litigation and the cost associated therewith, both financial and emotional, but also to avoid the myriad of problems that have arisen with respect to the process as a consequence of that which was required to be done, and utilising the Court’s resources to ensure that appropriate evidence was before the Court in admissible form. These were difficulties which I was increasingly concerned would lead the matter inevitably towards Appellable error or abortion of the trial.
Finally, under the heading “Final hearing” the Guidelines promote that:
The ICL should be proactive and bring to the court’s attention, matters which might hinder the court’s capacity to determine the matter on a final basis (for example, a family report not being progressed).
Analogously, in the case, what might have been brought to the Court’s attention was the suggestion that the Family Report, being the potential subject of significant attack by one or both of the parties, did not accurately reflect the views of X and that this caused the child distress upon learning of the contents of the report, albeit that she was aware of the contents of the report through means separate from the Independent Children’s Lawyer. Clearly, by the time the evidence developed on day 2 it was clear that X was so aware and was so distressed on whatever basis, (which was not possible of proper exploration).
The New South Wales Law Society’s ‘Representation Principles for Children’s Lawyers’, 3rd Edition, September 2007 states, with respect to the representation of children in a best interests model:
A major role of the best interests representative is to keep the child informed of progress of the litigation. The best interests representative should also act to minimise the trauma to the child associated with the proceedings.
I am not suggesting that the children were traumatised by meeting again with the Family Report writer. They had met her previously and from the mother’s evidence, accepting it on face value for present purposes, desired, (or at least X did), to meet again with the Family Report writer. However, those meetings did involve the children being removed from their schools on two days without prior notice to them, and it might have been somewhat concerning to them at least until it was properly explained to them on their arrival at the Court. Further, if X has, as the mother asserts, been distressed since learning of the contents of the first report and the suggested “misunderstanding” or “misinterpretation” of her comments, then it is regrettable that she has had no means of expressing or alleviating that distress.
In Part D of the New South Wales Law Society Guidelines “Taking Instructions and Preferences” the following is stated:
It is acknowledged that funding deficiencies often make it difficult for practitioners to spend time with the child they are representing. However, all efforts should be made to meet with the child before each and every court date at which the child must appear – [clearly, in this case the child is not required to appear] to prepare him or her for what is usually a very confusing and sometimes frightening experience. In addition, changes in placement, school suspensions, in-patient hospitalisations, and other changes affecting the child’s immediate environment warrant meeting with the child again.
Clearly, that portion of the Law Society Guideline is intended to refer to Children’s Court proceedings where children attend. However, what one can glean from it is, perhaps, that which concludes the comment. There are circumstances in which further meetings, several and plural are warranted. Indeed, the release of the Family report is one such event which must, if we are to develop best practice in the representation of children’s interests and giving full meaning to and enlivening the child’s right to have their voice heard and participate in proceedings, meet with children after reports are released particularly in the case of children of the age and apparent maturity of X leaving aside the controversies which then arose as to her having been misunderstood by the Family Report writer.
The Law Society of New South Wales Guideline continues:
In-person meetings allow the practitioner to explain to the child what is happening, what alternatives might be available, and what will happen next. Problems in communication might also be more easily overcome.
That is somewhat germane to the issue in this case it being suggested, again on the mother’s evidence and accepting it on its face, that the child had been misunderstood and that there have been problems in communication between she and the Family Consultant. A comment by a child taken from literature is also included on the page:
“Why can’t kids see the person who is making these decisions? I think it’s wrong that they can decide what should happen in your life without seeing you”.
I make clear that I am not inviting an Application for the child to be brought to the Court to meet with the Judge. Judicial interviewing is discussed by Justice Benjamin, Michelle Fernando and others and I am conscious of their erudite and well researched presentations on the point. I accept that it can be beneficial, especially for the child, and the practice is, perhaps, the subject of some resistance, perhaps arbitrarily, when it need not be, at least not on all occasions and in all circumstances.
This child X has not had that opportunity. Nor has X had the opportunity to make, for the seven months leading up to the trial, any comment as to the accuracy or otherwise of the reporting of her views by the Family Report writer. I make clear that there is no criticism whatsoever of the Family Report writer, simply that young X has had no opportunity to express any reaction to the report or the sequelae of it following release.
Under the heading “General obligations of best interests representative” the following comment is made:
It is therefore the duty of the best interests representative to ensure that all relevant evidence is presented to the court. The duty also entails undertaking investigations to seek all relevant evidence.
In this case such investigation would have included, at the very least, meeting with the children or those who were of sufficient intellect, cognisance, maturity and age, following release of the report. That most assuredly includes X and I would have thought Y.
Under the heading “Statutory obligations of best interests Representative” and drawing upon the earlier Full Court decision in P & P (1995) FLC 92-615, the Independent Children’s Lawyer is urged to ensure that, “The court is informed by proper means of the child’s wishes in relation to any matter in the proceedings”.
As the National Guidelines make clear, the Independent Children’s Lawyer should, at all times, avoid becoming a witness in the proceedings and should ensure that evidence is obtained from appropriate persons, (i.e. report writers) to avoid that circumstance. However, the issue that has arisen and how it has arisen has caused calamity in the proceedings. It has entailed the children being brought from school and the matter interrupted. It would have inevitably led to the matter not completing in its allocated three days, (a case in which there was some optimism of its completion in two days). But for its resolution it would have required a full five days of hearing and with a delay of at least seven months until completion. Indeed that delay of seven months could only be limited to such a delay, unacceptable as it is, on the basis of Judgment writing days being forfeited to accommodate the matter. Otherwise the matter could not have been returned to be completed in less than 12 months, such is the volume of work and the present state of the list.
The same Chapter of the New South Wales Law Society Guidelines provides:
In all possible circumstances children should have an opportunity to have their views heard in court and administrative proceedings. Where a best interests representative has been appointed, it is an important part of the best interests representative’s duty to seek the preferences of the child and ensure they are placed before the court.
That would include, to my mind, ensuring that when children are of age and maturity of children such as X and Y, that a Family Report is explained to them and their views canvassed before any position is put to the Court. It is, if nothing else, respectful of the child as a person rather than as the subject matter of the proceedings, and thus an object. Children are nothing of the sort. Children are human beings and with an inherent right shared by all human beings to be treated respectfully and with dignity. Those rights are not diminished by their minority.
Children are under a disability at law but with the same rights and entitlements to be treated with dignity and respect. Indeed, those rights are heightened as a consequence of their disability at law.
Children are not parties and thus the inherent irony of parenting proceedings is twofold:
a)The people whose welfare and interests are directly affected by proceedings do not participate directly. They are reliant upon others to have “a voice”; and
b)Those enjoined to enliven, protect, and fulfil children’s rights are the very people in dispute in the proceedings with differing views as to those rights.
In cases where parents are unable to agree how the rights of their children are to be enlivened, practiced and expressed then it becomes the role of the Court to determine such matters and with the assistance, if appointed, of the Independent Children’s Lawyer.
The ‘Legal Aid Commission of New South Wales, Practice Standards for Independent Children’s Lawyers in Family Law Proceedings’, October 2014, makes clear in Chapter 2.2 headed, “Interaction with children” that children should be seen except in the most exceptional of circumstances.
The Guidelines are silent as to the frequency or quantity of meetings, however, there is nothing that precludes plural or ongoing meetings. Indeed, it is made clear at paragraph 2.2.7 that plural meetings are envisaged wherein it is stated: “Explore in meetings (emphasis added) the extent to which a child can participate in helping to frame appropriate proposals”.
In contra-distinction thereto, paragraph 2.2.9 urges caution to: “Be aware of the pressures a child might be subject to and avoid over-interviewing a child or contacting a child over minor issues”.
The child’s views and changes to their living arrangements of some year’s duration are not “minor issues”. They are significant issues of great importance made so by the International Convention and incorporated as objects and principles of the Family Law Act 1975 in its totality by section 60B(4).
The Independent Children’s Lawyer is required at points 13 and 14 of the ‘Legal Aid Commission of New South Wales Practice Standards’:
To develop options for a child’s consideration, but respect a child’s wish to not express a preference, and to have further contact with a child before agreeing to proposals.
On can infer therefrom that before formulating and putting to the Court any position and before engaging with any proposal for settlement, that the Independent Children’s Lawyer should have discussed such position or proposal with a child of sufficient maturity and cognisance such as X.
I have not laboured those matters to seek to cause discomfort to anyone nor do I seek to create controversy. I am conscious that this is a first instance trial Court and my decisions are binding on no-one but the parties and myself. However, the above matters are matters of great importance and increasing concern to me as highlighted in the decision of Duffy & Gomes, albeit in far more catastrophic circumstances than these, where a trial needed to be adjourned part heard when significant evidence, clearly and readily available, had not been produced, and when children had not been met at the ages of 14 and 15, notwithstanding the release of not one but two Family Reports addressing their interests and between the two reports the children’s views having been reported as markedly and dramatically changed.
Certainly, there is some degree of parallel between the two cases as regards X. I wish only to see the day when Best Practice Guidelines are clear and followed. Not prescriptive Guidelines but illustrative (such as, for example, that which is contained in section 4AB of the Act under the definition of “family violence”) which assists in ensuring that these types of difficulties do not arise.
These children and their parents would, but for settlement of the case, have had to endure another seven months of uncertainty with the impact of that upon their parents cooperation, and potentially their parents functioning, certainly their parents financial health. In all of the circumstances it would have been disadvantageous and contrary to the best interests of the children.
One would hope some attention might be given to such Guidelines by Legal Aid bodies, and possibly through taking more fundamental steps such as the creation of an Office of Children’s Representation so that such matters can be addressed in a consistent manner at all times.
In any event the above matters are also relevant to the issue of Costs which I must address.
Costs
Costs are dealt with by reference to section 117 of the Act. Subsection (1) creates what is often referred to as the “general rule” that each party bear his or her own costs.
The general rule does not apply to the Independent Children’s Lawyer. They are not a party (see for example: Bennett & Bennett (1991) FLC 92-191). However, that preclusion does not revive any common law principle as to costs.
Subsection (2) provides the basis for any Order for Costs whether sought by a party or the Independent Children’s Lawyer. The Court must be satisfied of dual circumstances being a justifying circumstance and justice and equity.
There is no Application for Costs by either party either against the other or the Independent Children’s Lawyer.
In determining whether an Order for Costs should be made, the Court must have regard to the factors set out in subsection (2A), although they are not exhaustive of the considerations the Court may have regard to. The Court can have regard to such matters as are considered relevant.
Subsection (3) removes any doubt that the Independent Children’s Lawyer, whilst not a party as such, has standing to make and prosecute an Application for Costs.
Subsection (5) requires that I disregard the funding to Legal Aid Commissions, those seized with responsibility for appointing and funding Independent Children’s Lawyers.
Subsection (4) precludes me making an Order for Costs against a party and in favour of an Independent Children’s Lawyer if the party has received Legal Aid funding (whether that is interpreted as received Legal Aid at the time of the determination or at any prior time, although that need not be addressed). Neither party is, nor has been legally aided. The Court is also precluded from making an Order against a party if the Court is satisfied that a party would suffer financial hardship if that party was required to bear a portion of the Costs.
I propose to deal with each of the tests (for a discussion of which see ReJJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812) by reference to subsection (2A) and each of the factors therein.
Financial circumstances of the parties
The Independent Children’s Lawyer is not a party and thus I need not, and subsection (5) would, to a large extent preclude me, have any regard to their financial circumstances. As regards the parties as these proceedings have incorporated financial proceedings, each has filed a statement of financial circumstances.
Ms Lombard is not presently employed. That is not a criticism of her. It is simply a reflection of her evidence. She is engaged in caring for the children in a week about arrangement and is studying. She receives income by way of Centrelink and other associated benefits and Child Support as assessed to be paid by Mr Foster. Unusually for proceedings in this Court, there is no complaint that Mr Foster is other than diligent in fulfilling his obligation to pay Child Support as assessed. Indeed, it is the child’s right to be maintained and each parent is meeting their obligation.
Mr Foster, for his part, has filed a statement of financial circumstances setting out his affairs. Mr Foster is part of that middle-class group of society who might best be described as the “working poor”. Whilst he earns what, on paper, is a reasonable income and what should be comfortable middle-class income, a little over $100,000 per year, his expenses exceed his income. I have no reason to doubt his evidence on oath that this is so.
He will also shortly face the reality of needing to borrow further funds which borrowing he will then need to service, increasing his mortgage significantly, so as to comply with the Orders that I will shortly make in relation to property adjustment compelling that he pay to Ms Lombard a sum of $170,000. Ms Lombard, on a simplistic view, could thus be seen to be about to come into a far healthier financial position than she has been to date. However, she has no other assets of significance.
Ms Lombard will have significant legal fees to pay and again, that is not a criticism of the lawyers who are entitled to be paid for the work that they have done and done well. She has also given evidence that it is her intent and desire, as soon as her mother has attended to the sale of property owned by her, to jointly with her mother, or perhaps otherwise, seek to purchase a home, particularly once she has finished her studies and found employment.
In those circumstances, it would seem that neither party is in a particularly healthy financial position and I am satisfied, certainly not in a position whereby I could find other than that any Order for costs against them would cause them to suffer financial hardship. That would, as indicated, preclude an Order for Costs by reference to section 117(4)(b).
Lest I am wrong in that regard, however, I will consider the remaining factors:
Whether any party is in receipt of legal aid
Neither is.
Conduct of the parties to the proceedings: the parties cannot be criticised for how they have conducted the litigation
Whilst the parties have not settled their dispute at an earlier time it is clear that they have had real issues to agitate. They have not manufactured issues. They have not sought to pursue lines of inquiry that have been unnecessary. They have simply had very different views about what would best meet their children’s interests.
The parties have today reached an agreement. In addition to commonality as to the children’s best interests other factors may have been in play including the reality that the proceedings would go over with further costs on many levels. Settlement at the earliest opportunity is not the test or sole test of conduct. The conduct by these parties of their litigation, whilst the term “exemplary” is perhaps overstating the position, can best be described as “effective, efficient and appropriate conduct of litigation”.
Whether the proceedings are necessitated by failure to comply with an order
This is not relevant.
Whether a party has been wholly unsuccessful
Neither has. It might be argued that Mr Foster has been wholly unsuccessful in that he sought to obtain from the Court a variation of the previous parenting arrangement which will now continue. However, I am not satisfied that could appropriately fall within the descriptor of “unsuccessful”. Mr Foster has made a compromise based upon the state of the evidence as it has developed over the course of the hearing and in most unusual circumstances. To that end, whilst there may have been a shifting of attitudes, I am entirely satisfied that each parent has acted appropriately in conducting their case and in coming to that resolution.
Whether any party has made an offer in writing
This is not relevant.
Such other matters as the court considers relevant
If the children had been met and if the issues relating, particularly to X’s view, had been clarified after the release of the initial Family Report and prior to the commencement of the trial, I accept that which Counsel for the parties have stated –the matter would be completed within two days. Indeed, it may have settled. The matter was, until a compromised resolution was achieved, likely to have required five days of taxpayer funded hearing as well as the taxpayer funded representation of the Independent Children’s Lawyer. That was significantly influenced by the matters discussed above.
In those circumstances, I am not satisfied that an Order for Costs would be just as against the parties. They would already have incurred an additional two, if not three days of hearing, the cost of which would vastly outweigh that which is sought against each of them by the Independent Children’s Lawyer being $4,028.50 each.
I am not satisfied, as already indicated, that the parties could bear that cost without it being some significant disadvantage to them to the point of financial hardship.
Further, I am concerned that any Order for Costs would potentially preclude Ms Lombard being in a position to purchase accommodation in the future if she desired or would compel Mr Foster to sell his property, which brings about its own complications, as set out at the commencement of these reasons, (i.e. his mother, a third party who is not connected with the parenting aspect of the proceedings in any meaningful way, being subject to loss and hardship through the forced sale of her property in which she lives and holds an interest).
For all of those reasons, I am not satisfied that there is a justifying circumstance made out.
To the extent that I may be wrong in that regard I am not satisfied that it would be just and equitable in all of the above circumstances as described for any Order for Costs to be made.
I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 4 June 2015
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