Malouf & Malouf
[2022] FedCFamC1F 584
Federal Circuit and Family Court of Australia
(DIVISION 1)
Malouf & Malouf [2022] FedCFamC1F 584
File number: PAC 620 of 2019 Judgment of: GILL J Date of judgment: 12 August 2022 Catchwords:
FAMILY LAW – PARENTING – Orders made by consent – Contested orders no resolution sought particular factual disputes – Consideration of whether consent terms are in the best interests of the children – Application made by the mother to replace the father’s surname with her surname
Legislation: Family Law Act 1975 (Cth) ss 68B, 102NA, 117 Division: Division 1 First Instance Number of paragraphs: 88 Date of hearing: 11 & 12 August 2022 Place: Canberra Counsel for the Applicant: Ms Bateman Solicitor for the Applicant: Inner West Solicitors Pty Ltd Counsel for the Respondent: Mr Lo Schiavo Solicitor for the Respondent: Jacqueline Gore & Associates Counsel for the Independent Children’s Lawyer: Dr McConaghy Solicitor for the Independent Children’s Lawyer: Christina Lam & Associates ORDERS
PAC 620 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MALOUF
Applicant
AND: MS MALOUF
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
12 AUGUST 2022
It is noted that Orders 1–8 and 11–15 were made by consent on 11 August 2022.
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for Y (born 2011) and Z (born 2014) (“the children”).
3.That the children live with the Mother.
4.That the children spend time with the Father in accordance with their wishes.
5.That the Mother shall facilitate the children, or either of them, spending time with the Father, if the children, or either of them, convey to the Mother that they wish to spend time with the Father and that they seek that the Mother facilitate the children, or either of them, spending time with the Father.
6.That the Mother and Father shall keep each other informed of their residential address and mobile telephone numbers and will notify the other party of any changes in those details within 7 days of any such change.
7.The Mother shall notify the Father in writing within 48 hours of any emergency medical issues relevant to the children.
8.The Mother shall notify the Father of the children’s enrolment to any school within 7 days of their enrolment and shall authorise the school to provide to the Applicant Father, on his request, information relevant to the children’s education, school welfare, development and attainments, including school reports, school photos and order forms for school photos and is to provide a copy of these Orders to the Principal of the children’s schools.
9.The Father is restrained, pursuant to s 68B from physically approaching or attending any residential address where the children may reside and any school that the children attend.
10.That the mother shall be permitted to change the names of the children Y Malouf (born 2011) and Z Malouf (born 2014) to Y Malouf-Smith and Z Malouf-Smith respectively and that she be at liberty to provide a copy of these Orders to the Registrar of Births, Deaths and Marriages.
11.That the Mother shall within 48 hours inform the Father, in writing, of an active email address for each of the children.
12.That on 30 June of each year the Mother shall inform the Father, in writing, of an active email address for each of the children.
13.That all outstanding parenting applications as between the parents be hereby withdrawn and dismissed.
14.That within 14 days, the Independent Children’s Lawyer be discharged.
15.That the Independent Children’s Lawyer will meet with the children to explain the effect of these Orders within 14 days, including: -
(a)That the children are not required to spend time with the Father but if they wish to, the Mother is required to help facilitate that;
(b)That the children are not required to communicate with the Father but that the Father would like to communicate with them via email; and
(c)The Father intends to email the children and send them gifts via email.
NOTATION
A.The Court notes the Father’s email address is […]
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 the pseudonym Malouf & Malouf is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Introduction
These proceedings concern the best interests of X, born 2007, Y, born 2011 and Z, born (the “children”).
The applicant father is Mr Malouf, born 1955, and the respondent mother is Ms Malouf born 1981. The applicant is not the biological father of X, although by his application he sought orders in relation to him.
Despite the application referring to X, X’s father, being the mother’s second husband, Mr E, has never been placed on notice as to the proceedings and so orders should not be made about X. Once this issue was drawn to the parties’ attention, no party pursued orders in relation to X.
Despite this, X is still relevant to the proceedings given his being a part of the family unit.
The parties seek to resolve this matter in large part by consent terms arrived at on the first day of the hearing. Those terms are reflected in the orders made above. In short, they provide for the children to live with the mother, for the mother to hold sole parental responsibility, and to only spend time with the father in accordance with their wishes. Provision is made for email communication to be available to the father with the children.
They were unable to resolve their dispute regarding the mother’s proposal to change Y’s and Z’s surnames, a matter that will be dealt with after resolution of whether the consent terms should be made, at the end of this judgment. They were also unable to agree regarding the extent of a restraint pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) upon the father.
The parties present highly polarised accounts of their relationship prior to separation, the mother asserting that her experience was one of subjugation, sexual, financial, emotional and psychological abuse and exploitation, circumstances denied by the father. On submitting consent terms, the parties did not seek the resolution of these underlying factual disputes. It may be observed that absent a full testing of the evidence, such a resolution was not available. It may also be observed that other issues in the case, and the terms of the settlement, meant that the best interests questions could be determined without the resolution of those matters.
The children have, since separation in September 2018, lived with the mother. They have had almost no contact with the father, spending approximately five minutes with him in a supervised arrangement in 2019.
Six broad issues arise in consideration of whether it is in the best interests of the children to make the proposed orders.
The first is the issue of whether the children are at unacceptable risk of harm from abuse from the father. This issue is linked to the allegations made by the mother and denied by the father. Should a risk be found to arise from those allegations, or from a subset of them, then there is good reason to consider that either there should be no time with the father, or if the father is to spend any time with the children then it should be professionally supervised.
Although the risk of actual physical harm may also be ameliorated by the apparent physical limitations experienced by the father by virtue of his medical condition diagnosis, the underlying attitudes that lead to the alleged behaviours mean that supervision is warranted in any event to ensure that the children are not exposed to psychological abuse.
As noted above, the parties did not pursue the resolution of these abuse issues. Given the agreement as to the limited circumstances under which the children might spend time with the father, the terms proposed by the parties are sufficiently protective in any event.
The second issue is whether there can be any expectation of the mother in reality supporting any regime for time between the children and the father, whether supervised or otherwise. The previous isolated experience of supervised time organised pursuant to orders made by the then Federal Circuit Court was marked not only by a lack of success, but by the mother’s resistance to compliance in the presence of the children and the children’s ensuing resistance to the time, resulting in there being, in effect, no time.
Further good reason to consider that the mother is unlikely to give the children genuine support in spending time with the father may be seen in both her representations to the Family Report writers and in her position in the trial. She has made it apparent that she does not see spending time with the father as of any benefit to the children, and as detrimental to their well-being.
The third is the issue of the emotional and psychological impact upon the children if they were to be caused to spend time with the father. Each expresses resistance to spending time with him, even if limited in their articulation of why. Their primary carer, the mother, is trenchantly opposed to the time. The children showed such resistance in the past as to defeat professionally supervised time, and to suggest adverse impact upon them if time was to occur. Further, if they have been exposed to behaviour, such as that alleged by the mother, there is good reason to consider that they would experience time with the father as extremely troubling.
The fourth issue relates to how the children would experience time with their father, given his own description of the difficulties that he faces by reason of having a chronic medical condition, in that he would be reliant upon carers to assist in the conduct of interactions with the children, in circumstances where, at present, it cannot be thought that there is an extant underlying relationship with the children.
The sixth is what, if any benefit will accrue to the children from a meaningful relationship with the father, and whether any such meaningful relationship is available.
Material relied upon by the parties
The father relied upon:
1Notice of Child Abuse, Family Violence or Risk, filed 12 February 2019;
2Application in a Case filed 14 May 2021; and
3Affidavit filed 21 April 2022
The mother relied upon:
1Response filed (in the then Federal Circuit Court) dated 20 May 2019;
2Affidavit filed 1 June 2022;
The Independent Children’s Lawyer relied upon:
1Family Report of Ms F dated 11 November 2021; and
2Family Report of Ms G dated 28 January 2021
Factual issues
As noted above, the mother made a series of serious allegations against the father, the implication of which is that he has inflicted harm on both herself and the children. While not resolved by these proceedings, the fact and nature of the allegations is important to understanding whether the proposed orders are in the children’s best interests. The central allegations are set out below.
It is uncontroversial that the mother was employed in Sydney in a business operated by the father, H Company, from 1999 when the mother was aged eighteen. The mother asserts that at the commencement of her employment, she was socially isolated and estranged from her family who lived in J Region. While the father asserted that the mother was then receiving financial support from her family, he has annexed correspondence from the mother’s parents that confirms the at times estranged nature of the relationship, although it is suggestive that the estrangement was not at the time of the mother’s move to Sydney.
The mother says that she was verbally abused by the father and his associates in the workplace, but felt unable to leave due to a lack of savings or confidence, and felt reliant upon the father and associates. The mother says that she was forced to wear a hijab while at work and was told that god would kill her should she leave the workplace. Although she was living in an apartment, she was told that such could not be afforded by the company and that she should move in with the father, his then wife and children, and his associates and their family members. She was told that her pay was then the shelter and food that she was provided with. Although these matters were disputed, she, uncontroversially, slept on a mattress in the living area.
The mother says that she saw the father and his associates threatening their wives in this home.
The mother says that she was deprived of sleep and food and was psychologically abused at this home.
When the father and his family moved to another home at L Town, the mother moved with them. She says that she was forced into two marriages with nationals by the father. She did not make clear how she was so forced.
At 22 she married Mr M in Country K, as part of support for his obtaining of a citizenship application. She says that she became pregnant, but was told by the father to take pills to abort the pregnancy. She says that she returned to Australia, living with associates of the father (Mr N and his family) while Mr M lived with the father.
The mother alleges that at about this time, the father said that he no longer regarded her as his daughter but that he wished to marry her. She says that he would expose his erect penis to her, and that he subsequently dissolved her marriage to Mr M, who, she says, was sent back to Country K.
The mother says that a further marriage was arranged with Mr E, who is the father of X (born 2007). Again, it is unclear how the mother was forced into this marriage. The mother says that while she was pregnant with X, the father would have sex with her. She describes that Mr E was sent back to Country K and the father said that he would have him killed there.
The mother said that when she became upset the father would assert that she was mentally unwell and give her pills from Country K that made her feel unwell and dazed.
The mother says that the father said that she must marry again, and married her in late 2010. The mother explained that she felt that she had no other options for the support of X and herself, the father saying that he had Mr E killed. She says that she believed that the father would also have her killed.
The mother described beliefs and actions on the part of the father that she says raise concern about his dealing with their children. She says that he holds women in low regard, saying that most are destined for hell and are inferior to men. The father denies holding such attitudes. She asserts that he holds idiosyncratic religious beliefs and holds himself out as a prophet.
She identifies an incident where the father threatened to burn the vagina of the two year old daughter of his associate Mr N. The mother says that this was because she had urinated on the floor, and that the father had undressed her and held a lit piece of cardboard near her vagina.
The father agrees that he threatened to burn the child’s vagina for urinating, saying that he did so with the blessing of her parents. He denied that she was naked.
The father used to share a bed with his 13 year old daughter, over the complaints of her mother, his previous wife.
The mother says that from the age of seven to eleven the father would tell X to masturbate, which they would argue over and the mother would tell X not to. The father denied this.
The mother says that the father told her that he masturbated his nephew to see if it would make the nephew homosexual. The father denied this.
The mother says that the father spoke about massaging his daughters’ breasts so that they would not be deformed. He denied this.
Shortly prior to separation, in mid-2018, the mother says that an incident occurred where the father urinated upon Z, who was upset by it. The father agreed that an incident had occurred, saying that by reason of his medical condition, which he was diagnosed with in 2015, he had become incontinent, causing him to hold his penis so as not to urinate prematurely. He said that he had asked the children to bring him his urine bottle, but that they fought over it and delayed, causing him to lose control and to urinate upon Z. He asserted that the mother had made a joke about it.
The mother says that the father was abusive to X, saying nasty things to him, such as that he did not love him, or that he was a ‘mother fucker.’ She says that he also encouraged X (who then could have been no more than eleven) to read Mein Kampf, and told him that Jews had deserved to be killed in a gas chamber. While the father admitted to owning a copy of Mein Kampf, he denied either that he had encouraged X to read it, or that he thought in such a manner about Jews.
The mother also says that the father would have sex with her when she refused, on one occasion explaining that he was “marking (his) territory.”
As noted above, these were (in large part) not matters able to be resolved in the absence of a contested hearing. The mother specifically sought the settlement of the proceedings without resolution of such. They do however paint an extreme picture which, if true, speaks to significant abuse which would require the protection of the mother and children and, if untrue, indicate that there is no scope for cooperative parenting on the part of the mother given that they would indicate the extreme lengths that she would go to in order to prevent a relationship.
Separation
The mother says that she separated and left the family home with the children in late 2018 after the father had left for Country K in mid-2018. She says that the father threatened her that the penalty for leaving was death.
Following separation, in early 2019, the father attended a swimming carnival that the children were at. The mother was notified by the school. The father accepts that he attended, but was told to leave. X has told the mother that on another occasion he saw the father smoking a cigarette and watching him.
The mother says that post separation she lived with Mr and Ms O. She says that the father attended the property with some other men in about early 2019.
The mother ultimately moved to City P, New South Wales. The father has also moved there. There appeared to be no incident arising following his move to City P. He is living in housing provided by the NSW Housing Commission and has significant personal support provided due to his medical condition diagnosis. That support extends to all household chores, and assistance with doctors, hospital and chemists.
He describes the condition can cause him to freeze for between 5 and 25 minutes, that he falls, drools saliva, has impaired speech and mild cognitive impairment. His mobility is significantly restricted.
While the mother asserts that the father is not unwell, and that it is an act on his part, the consistency of his presentation both before the Court and to those preparing reports for the Court are sufficient to persuade me that this is not the case.
Since separation the father has had almost no time with the children. Two attempts were made at supervised time, as identified in the exhibit to the father’s affidavit comprising the supervision reports.
In late 2019, supervised time was arranged with Q Service, a mobile contact service. The time was arranged to occur at the T Shopping Centre. The report records an abusive and aggressive approach by the mother to the supervisor in the presence of the children, which also involved the mother asserting that the children did not want to spend time with the father. In the face of encouragement by the supervisor that court orders require compliance, the mother, in a raised voice asserted that the supervisor would be taking the children by force. The supervisor indicated that this would not happen. Z became distressed.
Eventually, an attempt was made for the children to spend time with the father. Ultimately, the children saw the father from a distance, with X raising his fingers, presumably in a rude gesture, toward the father. The children then indicated their refusal to interact with the father and the visit was terminated.
On return to the mother, the mother hugged the supervisor and apologised. While the mother asserts that the supervisor was crying, in the absence of such in her comprehensive report I do not accept that this was so.
It may be observed that the mother’s interactions undermined the children spending time with the father. They were of a character to undermine any prospect of a successful interaction and caused upset, in particular to Z.
The interaction with the mother is indicative, not only of a lack of support for the time, but of conduct that undermined any prospect of the time occurring.
The second attempt, in early 2020, did not even get as far as the first, the mother calling from the road to say that Z had vomited and that the children would not be brought to the handover.
Assessments
A number of assessments have taken place. A Family Report was prepared by Ms G in early 2021. That Family Report provided contingent recommendations dependent upon whether findings of family violence and/or sexual abuse were made. In the absence of such, short periods of supervised time, transitioning to fortnightly blocks, always in the presence of a carer were recommended.
While on interview none of the children appeared fearful, anxious, distressed or avoidant when speaking of the father, each keenly gave a negative narrative about the father, in terms suggestive of adult influence, as the complaints closely mirrored those of the mother. All three were highly critical of the father in a manner indicative that they wanted no time with him.
Ms G observed a risk that the children were strongly enmeshed with the mother, which boded poorly for their future development.
She also considered that the mother was strongly opposed to the children spending any time with the father. At the same time, Ms G assessed that the father did not have either the “communication skills nor understanding of the children’s psychological needs to be able to repair his relationship with the children, if it is genuinely fractured.”[1]
[1] Family Report dated 2 February 2021, p.36.
Ms G noted that even if the allegations about the father were correct, that it:
does not mean that it is in the children’s best interests to have no knowledge of their cultural or religious origins. [Ms Malouf’s] negative comments about the Islamic religion and the children’s skin colour were very pronounced and raise concerns about the racial and religious values that [Ms Malouf] is teaching the children. If [Ms Malouf] is teaching the children to be racially and culturally intolerant it may impact on the children’s relationship with [Mr Malouf] and also on their attitudes, behaviours and capacity to engage in respectful relationships with others in the short, medium and long term. Furthermore, it may have a highly detrimental impact in the children’s sense of identity as they mature.[2]
[2] Family Report dated 2 February 2021, p.38.
A further Family Report was prepared by Ms F in late 2021. Her recommendations differed from the earlier ones proposed by Ms G in that she recommended recognition time only with the father, in a professionally supervised setting. She recommended psychological support for the children, but also that if the allegations against the father as to sexual abuse were correct, then even a supervised arrangement for time with the father would not be indicated, as such would not be sufficient to keep the children psychologically safe.
Ms F considered that regular time with the father would be “highly destabilising” for the children, and that any time with the father would require therapeutic guidance from the counsellor working with the children.[3]
[3] Family Report dated 11 November 2021, p.18.
Ms F further noted that it appeared both that the children have no connection with the father and that “they are adamant that they do not wish to see him or communicate with him.”
Concerns were raised in relation to the mother’s mental health, noting her involuntary admission to a psychiatric ward for a short period following an altercation at the father’s home where she had destroyed property and the police had become involved. Generally, however, the father described the mother as a “very good mother.”
Ms F also noted that it is likely that the children will be unable, in the care of their mother, to learn about their paternal family, and father’s culture and religion (he identifies as a …) “in a positive manner that allows them to incorporate this information into their sense of self.”[4] She notes that children benefit from learning about their cultures of origin.
[4] Family Report dated 11 November 2021, p.17.
Discussion
The truncated nature of these proceedings, and the lack of cross examination, mean that it is not possible to determine the polarised factual background asserted by the parties. It is, however, not necessary to do so in order to determine the best interests of these children.
At present, the children do not have a relationship with the father that could be described as meaningful. A meaningful relationship is not currently available to them. They are opposed to spending time with him, in a context where the mother is trenchantly opposed to their having any communication with him, in a manner that has seen previous attempts at supervised time fail, and in a manner that is demonstrative of their hopelessness. Further, the father also lacks the capacity to assist the children to mend what is now a deeply fractured relationship.
It further cannot be assumed that even if a meaningful relationship could be developed, that it would be one that would bring significant benefits to the children.
An order for the children to spend time with the father would be futile, would not be productive of benefit, and runs the risk that the children would be destabilised or emotionally compromised. Despite the recommendation by Ms F as to recognition time, such time is unlikely to produce benefits to the children. Whether or not they have been exposed to the behaviours the father has been accused of, the prior attempts at supervised time indicate that even recognition time is headed for upset for the children and failure.
Sensibly, the parties have adopted a course that does not pursue time between the children and the father unless it is in accordance with the children’s wishes. Whilst it cannot be predicted that the children will form wishes that they want to spend time with the father, their wishes to do so are a necessary prerequisite to them obtaining benefit from the interaction.
As identified by the Family Report writers, cutting the children off from the father potentially compromises their own development and identity. The parties have agreed to a mechanism that avoids much of the problem with face to face time, but leaves the door open for the children to have connection to the father, which is by written communication by email. While this is not guaranteed success, given the mother’s attitude, it at least provides some prospect of connection with the father that does not carry with it the difficulties that accompany face to face time.
Further, the nature of the relationship between the parties does not allow for any interaction between them for the purpose of making long term decisions about the children. It is not in the interests of the children to have their parental responsibility shared where there is no prospect for joint decision making to take place. Accordingly, sole parental responsibility should be reposed in the mother as agreed by the parties.
These matters mean that it is appropriate to make the agreed orders at Orders 1-8 and 11-15 of Exhibit C1. Those orders were made on 11 August 2022 and I indicated that these reasons in support were to be published shortly after.
Matters that were not agreed
While the parties agreed that the orders set out above should be made, they were at odds regarding the terms of two further orders.
The first related to an agreed restraint upon the father from approaching or attending any residential address or school of the children. While the parties agreed that such an order should be made, the mother sought that it be extended to restrain the father from approaching within 500 metres of such a residential address or school. This was not a restraint sought by the mother until the commencement of the trial, and was not the subject of direct evidence.
The agreement between the parties that the father should not approach the residence or school is sensible and in the children’s best interests, given the manner in which the parties have resolved the dispute, such that the children’s interaction is to be at the behest of the children. The father’s attendance at their school or home would undermine such a resolution and pose a destabilising influence.
However, the mother’s pursuit of an exclusion zone of 500 metres is unwarranted. There is no indication that the father has approached a school since attending a school swimming carnival in 2019, and on doing so being asked to leave by the school. He complied and has not, it seems, approached since. Similarly, there is no recent suggestion of an approach to the mother’s home. Rather, the only approach of recent times was the mother’s attendance at the father’s home and destruction of property, resulting in the mother being made subject to an ADVO.
The mother suggested that there was no detriment to the father of such a restriction, other than noting his concession that he wishes to attend a residence some five houses from hers, where his friend resides. While that raises the spectre that the father may attend nearby, and that such could impact adversely on the children, there was no evidence to suggest that it has done so to date. Further, it reinforces the adverse impact on the father who, it might be supposed, experiences significant limitations in his life given his medical condition diagnosis and need for such intensive care. Finally, it was not possible to determine the degree of impact such a carve out of the country town that the parties both live in would have. The restriction agreed to by the parties should not be extended by the 500 metres as sought by the mother.
The second area of dispute relates to the mother’s application to remove ‘Malouf’ from the surnames of Y and Z, replacing it with ‘Smith’. The father and the ICL agreed to permit the mother to change their surnames to ‘Malouf-Smith’, but not to the dropping of ‘Malouf’ completely.
The mother relied on there being a lack of advantage to the children, and potential disadvantages in the younger children having a different surname to their older brother X, whose last name is Smith. The mother also relied on views expressed by Y and Z that favour the change in name.
The father emphasised the present dynamic that was colourfully, but accurately described as the father having been ‘ghosted’ and removed from the family. There can be little doubt that the mother is seeking to exclude the father, as far as she can, from the children’s lives. The benefit in retaining the father’s name was put by the father, with the support of the ICL, to be in order to retain that connection to paternal family and culture.
The mother countered that a name is not a necessary prerequisite to the children pursuing or being connected with their culture.
It was correctly identified that this is an issue in relation to which the best interests of each child is the paramount consideration. It is not an issue of parental rights.
There are matters identified by the parties that tend in each direction, as set out above. Of those matters, greater weight will be placed on the retention of the father’s name as a potential aid to the children retaining connection with him and their Country K heritage. This is for the purposes of development of identity as discussed by the Family Report writers. It may be accepted that this does not provide a guarantee of connection, and may lead to some embarrassment or frustration, as alluded to by the mother, but in circumstances where their links to the father, and to the identity that he brings are tenuous in the household of the mother, the complete removal of the name should not be permitted. Rather, if taking the name of Smith is as important as represented by the mother, the combined name should be used.
Costs
The ICL sought costs against the father for his share of the ICL’s costs in the sum of $5,337.40. Although the father received funding for his case through the Legal Aid Commission, via the s 102NA scheme of the Act, as the Full Court has said, such is not a grant of aid under the terms of s 117(4)(a) that would have the effect of excluding the ICL’s capacity to seek a costs order against the father.
Only limited evidence was otherwise available as to the father’s financial circumstances. He previously received a property settlement of $56, 686.37. Aside from that he lives in a Housing Commission provided home, has serious limitations due to his medical condition diagnosis, requires significant care, inferentially provided by government, and is in receipt of a Disability Support Pension.
Despite the limited property settlement received last year, I infer that his financial resources are limited and his financial prospects poor. To the extent that he may hold some reserves, it can be expected that they are necessary given his limitations.
I conclude that to order him to pay costs would, in terms of s 117(4)(b), cause him to suffer financial hardship. Accordingly, a costs order must not be made against him in relation to the ICL, and the costs application is refused.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 12 August 2022
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