Mendel and Mendel
[2018] FCCA 3256
•10 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MENDEL & MENDEL | [2018] FCCA 3256 |
| Catchwords: FAMILY LAW – Parenting – consideration of the child’s best interests – where the father is incarcerated and his personal attendance at Court is required in order to facilitate due process and justice – interpretation of section 77 of the Crimes (Administration of Sentences) Act 1999 – where the absence of an inmate may prejudice the rights of a party – application of section 3A(1) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) – serious family violence – where physical attendance at Court of a perpetrator of family violence will negatively impact the victim – the Court’s obligations under sections 69ZN and 67ZBB of the Family Law Act 1975 – COSTS – interpretation of section 117 of the Family Law Act 1975 – where the parties currently are or have previously been in receipt of legal aid – where an order to pay the costs of the Independent Children’s Lawyer would cause financial hardship on a party. |
| Legislation: Crimes (Administration of Sentences) Act1999 (NSW) s.77 Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) s.3A(1) |
| Cases cited: Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812) Other articles cited: |
| Applicant: | MS MENDEL |
| Respondent: | MR MENDEL |
| File Number: | PAC 1977 of 2016 |
| Judgment of: | Judge Harman |
| Hearing date: | 10 September 2018 |
| Date of Last Submission: | 10 September 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 10 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Todd of Counsel |
| Solicitors for the Applicant: | Lamrocks Solicitors |
| Counsel for the Respondent: | Ms Hamilton of Counsel |
| Solicitors for the Respondent: | Glenn R Walters & Co |
| Counsel for the Independent Childrens Lawyer: | Ms Morton of Counsel |
| Solicitors for the Independent Childrens Lawyer: | Morton Family Lawyers |
ORDERS
By consent, as between Ms Mendel and Ms M, Orders are made in accordance with terms of settlement executed by the parties, Ms Mendel and Ms M, and the Independent Children’s Lawyer marked Exhibit A.
Direct the solicitor for the Applicant to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
THE COURT NOTES that the above Orders are made on an undefended basis and without objection by Mr Mendel, but not by consent, thus preserving his right to make further Application for parenting Orders should he so wish.
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 or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Grant leave to the Independent Children’s Lawyer to make an Application for contribution towards costs of the Independent Children’s Lawyer.
Dismiss the Application.
EXHIBIT A
BY CONSENT, AND ON A FINAL BASIS, IT IS ORDERED:
That the applicant mother have sole parental responsibility for the children [X] (DOB 2011) and [Y] (DOB 2012).
That the children live with the mother.
That pursuant to S.68B the father be restrained from approaching the children or coming within 100 metres of their school.
That the father have no contact with the children, either in person or by written or verbal communication.
That it is noted pursuant to S.11 of the Australian Passport Act 2005 that:
(a)The mother is the sole person with parental responsibility for the children for the purpose of both that legislation and the Family Law Act 1975;
(b)The mother is the sole person required to make application for the issue of a passport for the children.
That the mother be given leave to provide a copy of these orders to the Department of Immigration for the purpose of applying for passports for the children.
That pursuant to S65Y of the Family Law Act 1975 the mother shall be at liberty to cause the children to travel outside of the Commonwealth of Australia.
That the paternal grandmother spend time with the children on the last Sunday of each calendar month for a period of six hours from 10:00am to 4:00pm.
That the paternal grandmother’s time with the children shall be suspended at the following times:
(a)On Mother’s Day each year;
(b)On Easter Sunday;
(c)On Christmas Day in the event that Christmas Day falls on a Sunday;
(d)On the children’s birthday’s in the event that either of their birthday’s fall on a Sunday.
That in the event that the paternal grandparents or either of them are unable to care for the children whilst the children are in their care in accordance with these orders, the paternal grandparents shall immediately contact the mother and return the children to her care.
That for the purpose of the grandmother spending time with the children, the mother shall deliver the children to and collect from the grandmother’s home, at the commencement of the children’s time with the paternal grandmother and the conclusion of each period with the paternal grandmother.
That each party refrain from denigrating, harassing, or belittling one another at all including within presence or hearing of the children.
That each party ensure that they speak with or about one another in any situation with civility and respect.
That the paternal grandmother shall not discuss with the children the reasons for, or the nature or circumstances of the father’s incarceration with, or within the presence of, the children, including as to his emotional state, or permit any third party to do so.
That the paternal grandmother shall be restrained by injunction from causing or allowing the children to have contact or communication with the father, whatsoever, including but not limited to:
(a)Taking the children to any correction facility at which the father may be held from time to time.
(b)By providing the children with, or permitting the children to read, receive or possess any written, verbal or electronic communication from the father (whether addressed to the children or otherwise); or prepared on the father’s behalf, or permitting a third party to do the same, whether such are written, photographic, pictures or otherwise;
(c)Causing or allowing the children to hear the voice of the father or see him on any electronic devices;
(ca)Passing messages along to the children or communicating to the children on the father’s behalf;
(d)Leaving the children in the presence of any third party who facilitates or attempts contact between the father and the children in any way or by any means, including but not limited to the matters set out in orders 15(a) to 15(ca) herein.
For the avoidance of doubt, order 15 extends to forms of contact or communication prepared or which were in existence prior to the making of these orders.
That the paternal grandmother must not bring the children into contact with or facilitate any communication with, whether it be face to face, by telephone or other electronic means, with any person with who the father is, or has been, in a romantic relationship.
That the paternal grandmother shall be restrained by injunction from discussing with the children any allegation made in the proceedings or any other court proceedings and shall ensure no third party discusses any allegations made in the proceedings or other court proceedings in relation to the mother and the father.
That subject to the availability of a Mental Health Plan the mother shall engage with a suitably qualified psychologist to assist with both explaining to the children and answering any questions that they may have, relating to the Father’s incarceration.
Notation
Order 15(b) does not require the grandmother to dispose of family photographs containing images of the Father, nor to remove same from her walls at home or the like, but extends to not putting any further photographs up.
IT IS NOTED that publication of this judgment under the pseudonym Mendel & Mendel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1977 of 2016
| MS MENDEL |
Applicant
And
| MR MENDEL |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today for the hearing of a controversy regarding parenting of two young children:
[X] born 2011, nearly eight years of age; and,
[Y] born 2012, nearly seven years of age.
The parties to the proceedings are numerous, being the children’s parents, Ms Mendel and Mr Mendel, the Applicant mother and Respondent father respectively, and Ms M, the children’s paternal grandmother, described in the proceedings as the second Respondent. The children’s best interests are capably represented by an Independent Children’s Lawyer.
The proceedings are listed today for trial, predominantly to determine dispute between Ms Mendel and Ms M. That arises in circumstances whereby Mr Mendel has, during the course of these proceedings, been sentenced to a period of imprisonment which he will continue to serve for some few years to come. That sentence relates to convictions, plural, regarding Mr Mendel’s behaviours towards Ms Mendel.
There is some contention raised by the evidence as to those matters. However, the charges preferred against Mr Mendel have been dealt with at trial in the District Court of New South Wales and convictions recorded and sentence imposed. Thus, I am satisfied that I need not traverse that controversy further.
Mr Mendel appears today having requested to appear by telephone. Attendance by telephone was not appropriate having regard to the fact that the matter is listed for trial.
An Order was made pursuant to section 77 of the Crimes (Administration of Sentences) Act1999 (NSW) requiring Mr Mendel’s production to the Court. Whilst, in some respects, it is regrettable that Mr Mendel has been transported some significant distance from the correctional centre at which his sentence is being served, that transportation and personal appearance is preferable in this case and so as to ensure that justice is not only done but perceived, by Mr Mendel, to have been done.
Section 77 of the Crimes (Administration of Sentences) Act1999 (NSW) provides that:
(1) If an appropriate authority [the Court] is satisfied that:
(a) it is necessary that an inmate should attend before it for the purposes of any legal proceeding, inquest or inquiry, and
(b) the absence of the inmate may prejudice the rights of a party,
the authority may make an order directing the Commissioner to cause the inmate to be produced at the Court or other place at which the proceeding, inquest or inquiry is being, or is to be, held [emphasis added].
The phrase “produced at the Court” would not, on its face, lend itself to any interpretation other than physical presentation. However, as a matter of practice, video and telephone appearances regularly occur to facilitate the participation of inmates in proceedings before this Court. That is so as section 3A(1) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) provides that:
A requirement by or under any other Act that a person appear (or be brought or be present) before a Court is taken to be satisfied if the person appears before the Court by way of an audio link or audio-visual link under this Act.
This provision, whilst not referring to “production” or “attendance”, being the language of section 77 of the Crimes (Administration of Sentences) Act1999, (and of its predecessor, the Prisons Act 1952 (NSW)), might well allow audio or audio visual means to be used to facilitate production and attendance when an Order is made pursuant to section 77. However, in each individual case, a decision still needs to be made as to whether attendance by video or telephone is preferable to personal appearance and whether such attendance is sufficient to facilitate due process and to do justice.
I have identified that, in some respects, it might be regrettable for an inmate to be physically produced to the Court. Such might include the views of and especially any objection by the inmate, the level of risk created by such attendance (whether the potential for escape from custody, aberrant behaviour or otherwise), the views and degree of distress or traumatisation or retraumatisation of the other party or parties or children as well as cost. Of these, cost is the least of the considerations. Justice should not have a budget or price tag and should certainly not be denied or compromised based on fiscal considerations. Anyone proposing that it should be so would no doubt complain voluminously if it were suggested that it be so for them
In this case, I was (and remain) satisfied that the physical attendance of Mr Mendel at the Court is necessary to properly facilitate his participation in the proceedings and for justice to be done. In this regard, I am conscious of the work of my academic colleague Dr Carolyn McKay published as “The Pixilated Prisoner: Prison Video Links, Court ‘Appearance’ and the Justice Matrix”. As Dr McKay observes, “technologies make a critical difference to prisoners’ experiences of…justice” and can pose real issues as regards both the provision of due process and perceptions of justice.
This matter is listed for final hearing. There are significant materials produced on subpoena that Mr Mendel has not previously had access to and, if any portion of that produced on subpoena or otherwise was to be tendered, there is no means, unless he is physically present, for Mr Mendel to receive or consider that material. As much of that material is sensitive in nature it may be inappropriate to transmit that material to Mr Mendel at a correctional facility. Further, the case advanced by Ms Mendel is that Ms Mendel would have sole parental responsibility and that no time or communication should occur between Mr Mendel and the children, in effect what would be referred to by our American cousins as a “termination of parental rights”.
That is not to suggest that physical attendance of inmates must occur in all cases even when features such as the above are present. There are issues to be balanced, especially in cases of family violence. If the physical attendance of a perpetrator of violence will negatively impact the victim of family violence, whether that be their safety, health and wellbeing or their ability to effectively participate (or both), then a discretion must be exercised in favour of the victim. However, the issue should be considered in each case. To adopt a practice of always requiring physical attendance or audio-visual attendance, irrespective of the reasons for the adoption of that practice, potentially denies due process and agency to one or both parties. An individual determination of what is necessary to do justice in each case is warranted.
Mr Mendel’s physical attendance has, however, led to other issues relating to the comfort, safety and participation of Ms Mendel that cannot and should not be overlooked.
As soon as the section 77 Order was issued, the legal representatives for Ms Mendel and Ms M, as well as the Independent Children’s Lawyer, were notified that Mr Mendel would be in physical attendance. All were requested, and especially the legal representatives of Ms Mendel, the victim of Mr Mendel’s offending behaviour, to contact my Chambers in the event that any arrangement by way of safety plan, physical separation of the parties or the giving of evidence by video from a separate part of the Registry or even a separate location, were desired.
The physical production of Mr Mendel before the Court has led to the invocation of the Court’s obligations under sections 69ZN and 67ZBB of the Family Law Act 1975 including an obligation to ensure that Ms Mendel is not directly cross-examined or directly present with Mr Mendel. That is not intended to cause offence to Mr Mendel, such as to suggest that whilst before the Court in custody, that he represents a threat to Ms Mendel. It is, however, the Court’s obligation to ensure that, in circumstances such as this, where there are serious allegations of family violence and particularly as a criminal conviction has flowed from an acceptance of those allegations at trial, that processes are put into place to address the concerns, security and participation of the person who has been the subject of those behaviours.
I am conscious that the Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018 proposes to introduce a new section 102NA to the Family Law Act 1975. However, the Family Law Act, whilst not presently precluding direct cross-examination of Ms Mendel by Mr Mendel, does provide a number of legislative bases permitting the Court to control how the proceedings are conducted.
Arrangements have been for Ms Mendel to be in a separate part of the Court, indeed, in a separate Court room, and to participate from that separate Court room by video had the matter proceeded to hearing. In different circumstances it may have been more appropriate for Ms Mendel to be physically present and Mr Mendel present in a separate room (his physical presence would still have been warranted for the reasons discussed above). However, security arrangements have meant, on this occasion, that I must sit in the same Court room as Mr Mendel and Ms M and Ms Mendel is separated. No disrespect is intended to Ms Mendel by this. It is simply what has been logistically necessary.
The matter need not now proceed to hearing as Ms Mendel and Ms M have reached an agreement and they have submitted Terms of Settlement. Mr Mendel makes clear that he does not consent to that which is agreed between his mother and Ms Mendel. Mr Mendel desires to prosecute an Application for time and communication with the children.
At an earlier time in these proceedings, Mr Mendel filed a Response. At that time, he was legally represented and at liberty. The Response sought and continues to seek that Mr Mendel and Ms Mendel have equal shared parental responsibility, that the children live with their mother and that they spend time with their father for various periods, including alternate weekends and periods during school holidays. Clearly, that Application for time could not, in the present circumstances, succeed. Again, that is not intended to by in any way dismissive of Mr Mendel’s role in these children’s lives as their father, merely to acknowledge that the evidence as it sits would preclude those periods of time occurring. Thus, on one view, the Application could be summarily dismissed pursuant to section 17A of the Federal Circuit Court Act 1999, that relief being incapable of successful prosecution.
Mr Mendel’s Response cannot be successfully prosecuted. Mr Mendel has not placed any alternate proposal before the Court and has not filed any evidence.
I propose to make the Orders agreed as between Ms Mendel and Ms M and to otherwise dismiss all extant proceedings. That will not preclude Mr Mendel bringing a fresh Application, should he wish to do so, based on facts and circumstances as they present themselves. The only alternate course available would be to adjourn the proceedings to enable further evidence to be put on, further amended Applications or Responses to be filed and further assessment by a family consultant. I am not satisfied that the later course would be in the best interests of these children.
The matter has advanced to this hearing on the basis of a Child-Inclusive Child Dispute Conference Memo. That is a limited intervention ordered, not pursuant to section 62G of the Act, but pursuant to section 11F, an intervention by a family consultant to assist the Court in short form and with a summary report to facilitate an understanding of the children’s views and in doing the best that the Court can, in those circumstances, to advance the matter towards conclusion.
However, that limited intervention would not be sufficient to hear and determine the matter on a final basis in light of the issues that would be presented. That presents the conundrum. If the matter were adjourned, it would need to be adjourned until August 2019 to allow time for a report to be prepared. The matter would then be advanced to trial thereafter certainly not before late 2019, in all probability early 2020. In taking the step of dismissing all extant Applications without intending to summarily dismiss Mr Mendel’s position, I am conscious of my obligations under section 69ZN of the Act.
The Court is bound by the five section 69ZN principles and by section 60CA of the Act which require that the Court regard as paramount, at all times and for all purposes, the children’s needs and interests and the impact that the conduct of the proceedings may have upon the children. In giving life to that principle I am conscious of that which fell from Forrest J in Gordon & Gordon [2015] FamCA 616 and I incorporate paragraphs 2 to 5 of his Honour’s decision herein.
2. The Applicant seeks such a parenting Order in circumstances where the father was not served with the application or affidavit material filed to support the application, where he was not aware of the hearing before me, where service is sought to be dispensed with, where the proceedings were heard in a closed Court and where an Order is also sought supressing publication of certain aspects of the matter including parts of the Court’s Orders that are sought.
3. Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.
4. Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.
5. In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others.
The Paramountcy principle in section 60CA of the Act requires that in all that is done the child’s best interests are the paramount consideration. To give that phrase real life and meaning rather than lip service, it means that the children’s best interests must impact even procedural decisions such as the one made in this case to dismiss all proceedings and bring finality rather than adjourn the matter for determination of Mr Mendel’s Application when agreement has been achieved between Ms Mendel and Ms M.
The Application of Mr Mendel that is presently before the Court could not succeed and, if it were determined on its merits today, unsupported by evidence, it must fail. That does not mean that the Application is not capable of amendment. Indeed, it is. However, at this point in time it has not been amended. Until this Court event and for some little time Mr Mendel has not participated. Again, that is no criticism of him. As an inmate serving a sentence, Mr Mendel does not have the ability to pick up a telephone and make calls at a time of his choosing.
Mr Mendel’s ability to attend the Court has significant limitations as well. Mr Mendel can participate in Court appearances but his attendance to inspect materials, for example, cannot be facilitated. It is on that basis, however, that the Application has been assumed until recently, to be effectively deemed abandoned or not pressed.
The children’s best interests require some degree of certainty and finality. That is not to suggest that their interests are best served by excising Mr Mendel from any communication with them, merely that the evidence, as it presently stands between the parties who have filed evidence in preparation for this trial, could not admit of any other arrangement.
It is worth setting out the section 69ZN principles:
Principle 1
That the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
That the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
That the proceedings are to be conducted in a way that will safeguard:
a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
b) the parties to the proceedings against family violence.
Principle 4
That the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
That the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The first section 69ZN principle would support the course I propose.
The second principle requires that the Court actively direct, control and manage the conduct of the proceedings. This matter has been on foot since May 2016, a period now of a little over two years. That is a period of time that these children have been fully aware that there is controversy with respect to their arrangements, if not their care, certainly the practice of a relationship with their grandmother.
The conclusion of that controversy is beneficial to these children and outweighs the benefit of further delay and adjournment, particularly when that adjournment would be in the order of 18 months, nearly doubling the length of the proceedings. Thus, I am satisfied that the best that can be done is to actively direct and control the proceedings through their conclusion.
The third principle requires that the Court conduct proceedings in a way that will safeguard children from being subjected or exposed to family violence as well as the parties.
In the circumstances as they exist, that is not a concern as such, although the mother’s case suggests that the children might be exposed to re-traumatising events, re-triggering events, as it were, if communication were to occur.
I make clear, particularly for the benefit of Mr Mendel, that such a finding is not made through the conclusion of these proceedings. However, the evidence, as it has been prepared for this trial, could not permit that issue to be fully or properly addressed.
The fourth principle requires that the Court conduct proceedings in a way that will promote cooperative and child-focused parenting. It is difficult to envisage how that might arise in this case or what could be done that might be different. Mr Mendel is incarcerated following convictions for raping Ms Mendel.
The fifth and final principle is that proceedings must be conducted with as little formality and technicality as possible. That, of course, does not obviate against judicial process, the affording of due process or application of rules of evidence. The principle merely authorises flexible process and procedure to the extent that disadvantage to these children can be ameliorated thereby whilst realising the benefit of achieving an outcome that is in the children’s best interests.
It is for those reasons that I take the step of dismissing all extant Applications, noting clearly within the Orders to be made that the Orders are made by consent as between only Ms Mendel and Ms M. Hence, these reasons, one would hope, might serve as the basis for Mr Mendel to argue against any complaint, raised in any subsequent proceedings he may commence, that he is excluded from doing so as a consequence of, for example, the principles Rice & Asplund (1979) FLC 90-725 as reaffirmed by Warnick J and others post-2006 amendments.
However, the conclusion of these proceedings is of real benefit to these children and certainly to Ms Mendel as their predominant carer at this point in their lives. Accordingly, those Orders are made and the matter brought to an end.
In light of the parenting Orders that I propose to make and the manner in which the proceedings are concluded, it might be argued that Mr Mendel’s appearance in person was unnecessary. Such an argument would be erroneous.
At the time that Mr Mendel’s attendance was ordered there was no inkling that the matter was or would be settled. It was anticipated that a hearing would proceed. Even absent evidence filed by Mr Mendel, there were still significant issues and benefits to Mr Mendel’s attendance so that he might appropriately participate.
Even with the matter concluded in the manner that it is, Mr Mendel’s personal attendance has served a purpose. Mr Mendel’s attendance has aided and facilitated justice being done. Mr Mendel does not forfeit his rights to due process upon conviction for a criminal offence. The children’s best interests require that both parents be afforded due process and able to participate in decision making, even in circumstances such as these where the Court has made the decision. Mr Mendel’s presence has afforded him respect, enabled his participation in negotiation and allowed him to hear these reasons and, I would hope, understand the Court’s decision and accept it.
At the conclusion of the proceedings, an Application for costs is made by the Independent Children’s Lawyer, as is suggested to be a requirement or condition of the grant of aid provided to the Independent Children’s Lawyer.
An Application for costs is governed by section 117 of the Act.
Subsection (1) creates what is often referred to as the “general rule” that each party shall bear his or her own costs. The Independent Children’s Lawyer, of course, is not a party (see Bennett & Bennett (1991) FLC 92-191). Accordingly, the general rule does not apply to them.
Subsection (3) makes clear that the Independent Children’s Lawyer, notwithstanding that they are not a party to the proceedings, has standing to make an Application for costs.
Subsection (2) reserves a general discretion to award costs, notwithstanding the general rule, subject to a justifying circumstances and justice both being established (see Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812).
Subsection (2A) sets out a list of prescriptive but not exhaustive consideration which must be addressed in each case.
Subsection (4A) does not apply dealing, as it does, with Applications by or involving child welfare agencies.
Subsection (5) precludes the Court taking into account the funding arrangements of Legal Aid Commissions as a basis for costs.
In this case the issue of costs is readily dealt with by reference to section 117(4). That provision provides that, in any proceedings in which an Independent Children’s Lawyer has been appointed, the Court must not make a costs Order against a party in relation to costs of the Independent Children’s Lawyer if a party “has received legal aid in respect of the proceedings”.
The mother and grandmother are both legally aided at hearing. Mr Mendel had previously, prior to incarceration and when legally represented, also legally aided.
The section is somewhat curiously worded, directing that the Court must not make an Order against a party who has received Legal Aid. Whilst a party who was funded to attend a litigation intervention conference prior to the commencement of proceedings would most likely not fall within that definition, a party who had received a grant of Legal Aid to commence proceedings but who, for whatever reason, did not receive funding beyond the date of filing, may well be argued to be, as it were, immune from the costs of the Independent Children’s Lawyer. That issue need not be determined, however, as in this case, clearly, at some point in the proceedings, Mr Mendel has received Legal Aid.
Whether it is necessary to determine whether the phrase, particularly in connection to “the proceedings”, relates to the specific Court event which is occurring, again, need not be determined, (although, on the basis of the wording of the section, I would be satisfied that if the party has received Legal Aid funding at any point in the proceedings, that they would, in all probability, be protected by subsection (4)). The section also precludes an Order for costs if a party “…would suffer financial hardship if [that] party had to bear a proportion of the costs of the Independent Children's Lawyer”. That provision must preclude costs being ordered against Mr Mendel.
Mr Mendel would suffer financial hardship if he was required to bear a portion of the costs of the Independent Children’s Lawyer, assessed in the sum of $7,500 in total and thus $2500 each if proportioned equally between the parties.
Mr Mendel is incarcerated, earning little or no income, and that which he earns is not available to him. Thus, the debt would simply wait for his discharge and, in some years hence, when he is at liberty and, one would hope, able to obtain employment, he would then have the debt hanging over his head, together with accumulated interest. That would cause financial hardship to him. On either of the bases provided by section 117(4) of the Act, I am satisfied that an Order for costs could not be made. The Court is precluded from doing so in those circumstances.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 15 November 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Appeal
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Injunction
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Costs
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Procedural Fairness
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Jurisdiction
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