Marley and Finch (No 2)

[2010] FamCA 1070

FAMILY COURT OF AUSTRALIA

MARLEY & FINCH (NO. 2) [2010] FamCA 1070

FAMILY LAW – CHILDREN – Child related proceedings – Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Marley

RESPONDENT: Mr Finch

INDEPENDENT CHILDREN’S LAWYER: Mark Whelan, Lawyer

FILE NUMBER: SYC 4319 of 2008

DATE DELIVERED: 9 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 9 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foster

COUNSEL FOR THE RESPONDENT: Ms Conte-Mills

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Mrs Stolier

Orders

1. Leave is granted to the father to make an oral application for an injunction restraining the children from coming into contact with Mr Y.

2. The application for an injunction is declined.

3. Leave is granted to the Independent Children’s Lawyer to make an oral application for the costs of:

   (a)       the Independent Children’s Lawyer in the sum of $11,189 and

   (b)       Dr LS’s attendance at court on 8 September 2010.

4. By consent each party is to pay $550 to Dr LS within seven days of today’s date.

5. A decision in relation to the application of the Independent Children’s Lawyer’s costs is reserved until the property proceedings are concluded.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4319  of 2008

MS MARLEY

Applicant

And

MR FINCH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Before the court are proceedings for parenting orders between the mother and father of the children:  N born in March 1996, L born in July 1999, and H born in August 2001.  The parties have come to an agreement in relation to the orders that should be made in those proceedings set forth in a document of some 11 paragraphs.  I am asked to make orders in accordance with the terms of that document.  I have considered the evidence given particularly by the independent expert in these proceedings and I accept that the orders asked to be made by consent do reflect a set of orders which are in the best interests of these children at the present time.

2. Procuring agreement in relation to these orders has been a matter in which I commend the father for doing what is appropriate as a parent;  that is to say, putting the interests of his children above his own.  That could not have been easy for him but it shows commendable devotion to that principle.  I make orders in accordance with the consent orders submitted to me, initialled by me and placed with the papers.

3. I am asked to deal with an issue shortly and without reasons in relation to whether or not an injunction should be made restraining the children from coming into contact with Mr Y who has given evidence before me.  The evidence in respect of Mr Y is that he has had an unenviable criminal record ending in 2006.  The evidence before me is that after he and his partner moved to a residence near that of the mother, they have had no further criminal convictions.  The convictions, as I say, were unenviable.  They related to drug-taking and drug supply and other offences.  I am, however, satisfied that they have not been subject of any notice in relation to offences since their movement into the area of the mother.  Mr Y has been permitted to assist in the children’s school activities and has cared for the children on occasions.

4. The mother has demonstrated herself to be, in relation to the care of the children, responsible and vigilant and it seems to me that I can have confidence in her continuing responsibility and vigilance in relation to their care.  I do not think anybody is beyond redemption and it seems to me that this gentleman has added positive action to the evidence that Mr Y gave.  It appears that their lives have turned around but, in any event, should there be any residual concern, I am satisfied that the mother will adequately protect the children.  Accordingly, I decline to make the orders sought.

   RECORDED  :  NOT TRANSCRIBED

5. An application is before the court for orders for the payment of the Independent Children’s Lawyer in the sum of $11,189, being $5,594.50 payable, is sought from each party.  In addition, fees payable to Dr LS in the sum $550 per party is also sought.  There is a consent to an order that each party pay $550 to Dr LS within seven days of today’s date and I make that order.

6. As to the order for the Independent Children’s Lawyer’s fee it is raised on behalf of the husband, his parlous financial state.  I accept that that is something that has to be further investigated and I intend to reserve my decision on that application until such time as the property proceedings are concluded.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 9 September 2010.

Associate:

Date:  16 November 2010