Martindale & Grainger (No. 2)

[2007] FamCA 1086

FAMILY COURT OF AUSTRALIA

MARTINDALE & GRAINGER (NO. 2) [2007] FamCA 1086

FAMILY LAW – CHILDREN – Variation of orders by consent
FAMILY LAW – COSTS – Child representative

Family Law Act 1975 (Cth)

APPLICANT: Mr Martindale

RESPONDENT: Ms Grainger

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 111 of 2005

DATE DELIVERED: 30 August 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Cronin J

HEARING DATE: 30 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ms Rama

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the Independent Children’s Lawyer engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That the reasons for judgment this day be transcribed and copies made available to the parties.

4. That the application by the Independent Children’s Lawyer for costs be dismissed.

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

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

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 111 of 2005

MR MARTINDALE

Applicant

And

MS GRAINGER

Respondent

REASONS FOR JUDGMENT

1. This is a matter in the Albury circuit which has been around for some time, involving a parenting dispute between Mr Martindale and Ms Grainger.  Mr Martindale is the father and Ms Grainger is the mother of the child born in April 1997 and is therefore 10 years of age.  The parties are to be enormously commended for the effort that has gone into resolving this dispute but that could not have been possible without the assistance of Ms Rama as the Independent Children's Lawyer. 

2. The parties today have presented me with some proposed parenting orders into the future based upon the dismissal or discharge of the existing arrangements.  From what I have read and from what I have been told, these orders are not only very sensible but they are obviously in the best interests of the child.  I have made, in discussion with the parties, some changes to those orders and made it clear to each of the parties, having regard to the fact that they are not represented by lawyers, about the various restrictions on my jurisdiction to make orders.  Notwithstanding those restrictions, wherever there has been something of a query about the capacity to make the order, the parties have agreed, knowing that whatever they have said is being recorded and then the potential agreement in the future, if it becomes a problem, can be clarified by reference to the transcript.

3. I have indicated to the parties that I am more than happy to make the orders in their son's future best interests. Ms Rama, however, as is the usual practice of the New South Wales Legal Aid Authority, was required to make an application for the costs from each party. She candidly acknowledges that each party has had financial restrictions for a variety of reasons, all of which are genuinely associated with the respective care of the child. In my view, having regard to all of the matters set out in s 117 of the Family Law Act 1975 (Cth) (“the Act”), it would not be just and equitable for me to make an order for costs against the parties, regardless of their current financial circumstances which I accept are straightened in any event. In all of those circumstances, I propose to decline to make an order for costs.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: