Moya & Moya
[2025] FedCFamC1F 375
•4 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moya & Moya [2025] FedCFamC1F 375
File number(s): PAC 3440 of 2024 Judgment of: SIMPSON J Date of judgment: 4 April 2025 Catchwords: FAMILY LAW – PARENTING – where the parties agree on final orders save for discrete issues – determination as to whether orders should be made for the engagement of two supervision services – where it is in the children’s best interests for them to spend time with their mother at one supervision service only – determination as to the commencement and construction of school holiday time – orders made for the mother to spend additional time with the children during the next summer holiday period.
FAMILY LAW – COSTS – whether the parents should each pay one half of the costs of the independent children’s lawyer – changes in financial circumstances as a result of consent parenting orders – finding that the mother will experience hardship if she were required to pay the costs of the independent children’s lawyer – finding that the father would not experience hardship if he were to pay the proposed costs – orders made for the father to pay a one-half share of the costs of the independent children’s lawyer.
Legislation: Family Law Act 1975 (Cth) s 117 Division: Division 1 First Instance Number of paragraphs: 44 Date of last submission/s: 4 April 2025 Date of hearing: 31 March 2025, 1 – 4 April 2025 Place: Sydney Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Mr Dalzell Solicitor for the Respondent: Blackwell Short Lawyers Counsel for the Independent Children's Lawyer: Mrs Stolier Solicitor for the Independent Children's Lawyer: Mason Mia & Associates – Solicitors and Advocates ORDERS
PAC 3440 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MOYA
Applicant
AND: MS MOYA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SIMPSON J
DATE OF ORDER:
4 APRIL 2025
THE COURT ORDERS THAT:
1.The parenting proceedings be removed from the active pending cases list.
2.All previous orders made in proceedings number PAC3440/2024 as they relate to parenting matters be and are hereby discharged.
3.The father shall have sole responsibility for making decisions in relation to all long-term issues relating to the children:
(a)W, born 2015;
(b)X, born 2016;
(c)Y, born 2018; and
(d)Z, born 2019. (“the children”)
AND for the purposes of this order:
(a)Prior to making any such major-long term decision the father shall notify the mother in writing to her nominated email address, as soon as practicable and no later than 21 days prior (if possible), to the decision;
(b)For the purposes of section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children are permitted to have an Australian Passport;
(c)The father is permitted to apply for an Australian Passport for the children and the mother’s consent is not required;
(d)The father shall pay all costs necessary to obtain the children’s passports;
4.Prior to making any decision about a major long-term issue, the father inform the mother about the decision/s to be made as follows:
(a)The father inform the mother by email of his proposal relating to the children and include in that email his views about what is needed and why and provide source information (if relevant) that he is relying on when making his proposal;
(b)Within 7 days of receiving the email from the father pursuant to subparagraph 4(a) herein, if the mother wishes to comment on the father’s proposal, she advise the father by email (to the address from which the father sent his email) of her views in relation to his proposal relating to the children.
(c)Upon receipt of any email from the mother pursuant to subparagraph 4(b) herein, the father take her views into account and after doing so, he make the decision and advise the mother via email within 24 hours of making the decision.
(d)If the mother does not respond pursuant to subparagraph 4(b) herein, the father be entitled to presume that the mother does not wish to be involved, and the father may decide the issue accordingly.
5.The children shall live with the father at all times other than when they are spending time with the Mother in accordance with these Orders.
6.The children spend time with the mother at all such times as may be agreed in writing between the parents but failing agreement and until a period of six (6) calendar months from the date of these orders has elapsed, and subject to order 10 below, the children shall spend supervised time with the Mother as agreed between the parties for two (2) hours on Saturday per fortnight supervised by such supervised contact service as agreed to between the parties in writing and failing agreement B Family Services, subject to B Family Services availability to facilitate.
AND THE COURT NOTES that in the event that supervision can be provided each week, then time shall occur weekly.
7.For the purposes of order 6 herein:
(a)The father shall forthwith contact B Family Services to undertake an intake assessment.
(b)Each party shall attend all necessary appointments (if required);
(c)Each party shall comply with any relevant policies and obligations of the supervised contact service;
(d)Each party shall comply with all reasonable requests and/or directions of staff of the supervised contact service; and
(e)The Father shall pay all fees associated with the attendance at the supervised contact service.
8.Following the expiration of the six (6) calendar month period referred to at order 6 above, and following the Mother’s compliance with Order 10 below, the children shall spend time with the Mother as follows:
(a)For a period of two months from 10:00am to 4:00pm each alternate Sunday;
(b)Following the conclusion of the period in the immediately preceding Order and thereafter:
(i)During school terms from after school (or 3:00pm) on Friday to before school (or 9:00am on Monday) each alternate week commencing on the first Friday following the expiration of the period in the immediately preceding Order;
(ii)On any of the four (4) children’s birthday for two (2) hours at Town D on a non-school day from 3pm to 5pm (with changeover at the Town D Post Office) and at Town C on a school day from the conclusion of school to 5pm.
(iii)During school holidays:
A.For one half of each of the term 1, 2 and 3 holidays, for the first half in even years and the second half in odd years;
B.Unless otherwise agreed in writing between the parties, the mother’s time with the children in the long summer holiday period commencing December 2025 shall be extended following the weekend care pattern then in place such that she cares for the children for five nights on three occasions being Friday to Wednesday.
C.For the long summer holiday period commencing December 2026, on a week-about basis, commencing from the first week.
D.For the long summer holiday period commencing December 2027 and thereafter, for the first half in even years and the second half in odd years.
(iv)During special occasions:
A.On the weekend which includes Mother’s Day, from the conclusion of school (or 3:00pm) Friday to the commencement of school (or 9:00am) Monday;
B.Over the Christmas period in even numbered years from 1:00 pm Christmas Eve until 5:00 pm Boxing Day.
(c)For the purposes of these orders, the school holiday periods shall be as published on the official website of each child’s enrolled school and in the event the published school holiday periods for each child differ, the commencement and conclusion dates for the school holiday periods for each of the children shall be as follows:
(i)the commencement date shall be 9:00am the day immediately following the last child’s required attendance at school for the term; and
(ii)the conclusion date shall be 5:00pm the day prior to the first child’s required attendance at school for the term.
(iii)That in the event there is an uneven number of days during any school holiday period, the parent who has the care of the children in the first half shall have the one additional number.
(iv)Changeovers shall take place at 12pm.
9.In the event the Mother does not comply with the requirements pursuant to Order 10 below at any stage, then the Mother’s time with the children shall revert to the regime as specified in Order 6 for such period as the Mother remains non-compliant with Order 10.
10.The mother forthwith undertake therapy with a suitably qualified and experienced clinical psychologist or psychiatrist with relevant family law experience to assist her to come to terms with these Final Orders and the reasons for same, and for this purpose:
(a)The mother shall provide a copy of the Child Impact Report of Ms E dated 7 February 2025 together with a copy of these Orders and the Reasons for Judgment to the therapist.
(b)The mother must provide to the Father the full name and qualifications of the psychologist within 24 hours of booking her first appointment.
(c)The costs of the treating practitioner and/or other treating practitioners attended upon shall be paid solely by the Mother.
(d)The mother must attend on the psychologist at times and on dates as requested by the psychologist (but not less than a continuous period of 6 months) and comply with all reasonable recommendations of the psychologist including with respect to actioning any referrals the psychologist may make for the mother and for this purpose the mother shall:
(i)Attend upon any other medical practitioner (including but not limited to psychologists, drug and alcohol counsellors, or general practitioners); and
(ii)Obtain prescriptions or taking any medication as prescribed by the treating practitioner or any general practitioner;
(e)That at the conclusion of six (6) months, the mother must provide a report to the father from her psychologist setting out the following matters:
(i)The dates of the mother’s appointments and any future appointments;
(ii)Observations as to the mother’s compliance, and any recommendations of the psychologist.
11.After the expiration of six months, and subject to compliance with Order 10, the father facilitate communication between the children and the mother via FaceTime (or such other electronic video communication as the parents agree) once per week at a time as agreed and failing agreement at 6pm on Wednesday.
12.Notwithstanding any order to the contrary, the children shall spend time the Father on the following occasions if the children are not otherwise living with him:
(a)On the weekend which includes Father’s Day, from the conclusion of school (or 3:00pm) Friday to the commencement of school (or 9:00am) Monday.
(b)Over the Christmas period in odd numbered years from 1:00 pm Christmas Eve until 5:00 pm Boxing Day.
13.Unless otherwise agreed between the parties, changeovers shall occur at the following locations:
(a)For any periods when time is stated to occur on either “the commencement of school” or “after school” changeover shall occur at the children’s school; and
(b)For all other periods, changeover shall occur at McDonalds Town C.
14.Each party shall:
(a)Keep each other informed of their residential address and telephone number at all times;
(b)Keep the other parent informed of the children’s health and any health issues and notify the other parent as soon as practicable in the event of an emergency involving the children;
(c)Use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family to the children or in the presence of the children.
15.Any school the children attend, is hereby authorised to provide to the father and the mother photocopies of reports, school photographs, newsletters and announcements of school activities, or information otherwise pertaining to the education, attendance, academic performance or extra-curricular activities of the children, or pertaining to any issues, incidents or accidents relating to the children, or if none have been made available in writing, then the parent who receives news or other information regarding the children’s schooling verbally, provide written particulars by email of such reports and/or activities to the other parent within 3 days of such particulars being received.
16.Prior to the expiration of six (6) months from the date of these orders, the Mother shall be and is hereby restrained from attending at the children’s school other than as provided for in these orders when she is delivering or collecting the children to spend time, unless with express written consent of the father.
17.Unless with express written consent of the father after six (6) months from the date of these orders, the mother is only permitted to attend school at the following times:
(a)Changeover as per these orders; and
(b)Designated school events for which parent attendance is permitted.
18.Each party shall be restrained from:
(a)Denigrating the other parent or members of the other parent’s family to the children or in their presence or at all;
(b)Passing information or messages through the children to the other parent;
(c)Enrolling the children in extracurricular activities which would impact on them spending time with the other parent without the written consent of that parent; and
(d)Making appointments for the children on a day that the children are meant to be in the care of the other parent, without consulting the other parent and obtaining his/her prior consent.
(e)Discussing these proceedings, including the expert reports, or their living arrangements or views, with the children or in the presence or hearing of the children or allowing any other person to do so, save and except with the assistance and support of the family therapist or the children’s own therapist;
(f)Showing the children any of the court documents including the family report and expert evidence, leaving documents in any location where the children may access them electronically or otherwise or allowing any other person to do so;
(g)From loitering at changeovers;
(h)From discussing issues with changeovers or concerns about changeover or the other parent in the presence or hearing of the children including at changeover itself; and
(i)From physically disciplining the children.
19.Pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth), both parties shall, subject to orders 20 to 22 below, be entitled to take the children to a place outside of the Commonwealth of Australia provided that:
(a)Unless otherwise agreed in writing, such overseas travel is to take place during periods of time that the children are ordinarily to spend with the travelling parent;
(b)The travelling parent shall first provide to the non-travelling parent at least six weeks prior to any intended travel, the written details of the following:
(i)The names of all places outside of the Commonwealth of Australia where it is proposed that the children are to travel (being countries, cities and towns);
(ii)The proposed dates of travel including departure and return dates; and
(iii)The contact telephone numbers, and addresses for all the places where it is proposed that the children will be staying overnight when outside of the Commonwealth of Australia.
(c)Not less than fourteen (14) days prior to the proposed date of the children’s departure from the Commonwealth of Australia, the travelling parent must provide to the non travelling parent the following further documents and information in writing:
(i)Copies of all return airline and/or shipping tickets for the children evidencing the dates of their departure from and arrival in Australia;
(ii)A copy of the relevant travel insurance policy verifying that whilst the children are travelling outside of the Commonwealth of Australia they are listed and covered on a valid travel insurance policy for the duration of the time they are overseas;
(iii)Copies of all written itineraries for the actual overseas travel; and
(iv)Details in writing confirming the contact telephone numbers upon which the children may be contacted whilst overseas and details in writing of all addresses of the places where they will be staying overnight when outside the Commonwealth of Australia.
20.Both parties by themselves, their servants and their agents shall be restrained from removing or attempting to remove the children from the Commonwealth of Australia to any country or countries which are not signatories to the Convention on the Civil Aspects of International Child Abduction signed at the Hague Convention on 26 October 1995 OR which fall within a region or regions for which a current travel advisory warning against all travel and all non-essential travel to such region or regions has been issued by the Australian Government Department of Foreign Affairs and Trade from time to time.
21.For the purposes of facilitating the children’s travel outside the Commonwealth of Australia pursuant to these Orders:
(a)both parties shall sign all documents deeds and instruments and provide all necessary consents to facilitate all required travel visas and all other travel related documents for them within seven (7) days of receipt of same from the other parent; and
(b)if the non-travelling parent has possession of the children’s passport in the period prior to a period of travel which is being proposed by the travelling parent, then he/she shall provide the original passport to the travelling parent no later than 14 days prior to the intended date of departure;
(c)if the travelling parent is the mother, she shall return the children’s passport to the Father forthwith upon return to Australia.
22.The children’s passports be held by the father.
23.Pursuant to section 68B of the Family Law Act 1975 the mother be and is hereby restrained from bringing the children into physical contact with the maternal grandfather and that any communication which occurs between the children and the maternal grandfather shall at all times be under the direct supervision of the mother.
24.Leave be granted to the father to have access to the expert report of Ms E dated 7 February 2025 and a copy of the report may be made available by the father to any psychologist or psychiatrist which any of the children may attend upon in the future for therapy in relation to any behavioural and/or mental health issue.
25.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
26.This Order be explained to the children by the Independent Children’s Lawyer.
27.The order of appointment of the Independent Children’s Lawyer be discharged following the completion of the matters addressed in order 26.
28.Within 28 days of the date of these Orders, on or before another date as agreed with Legal Aid NSW, the father shall pay to Legal Aid NSW $8,736.75 being a one-half share of the costs of the Independent Children’s Lawyer in the proceedings between the parties.
29.The Independent Children’s Lawyer’s application for costs is otherwise dismissed.
THE COURT NOTES THAT:
A.Orders 6, 8(b)(iii)(B)-(D), 10(e)(ii), 28 and 29 herein were made by judicial determination. All other orders were made by consent.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Moya & Moya has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTSIMPSON J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
THE CONSENT ORDERS
At the conclusion of day four of the final hearing in this matter, I was advised that the parties had reached agreement on final orders, save for three outstanding issues about which the parties indicated they sought my determination. I have to hand the agreed minute of orders, which addresses the future care arrangements for the parties' four children:
(a)W born 2015
(b)X born 2016
(c)Y born 2018 and
(d)Z born 2019.
This agreement was achieved between the parties and with the input and assistance of the Independent Children's Lawyer, after the conclusion of the evidence, including and importantly, the evidence of the single expert, Ms E.
The court has the benefit of the Child Impact Report of Ms E dated 7 February 2025. The concerns Ms E expressed in that report were confirmed by her in her oral evidence. I note that, before her oral evidence, Ms E had received the parties' trial evidence and a range of subpoenaed documents.
In her oral evidence, Ms E indicated that the views expressed in her report were confirmed and, indeed, strengthened by what she had read in the additional material. She observed that there was no basis for realistic estrangement of the children from their father. I accept that statement in circumstances where the evidence before the court made clear that the father is a loving and capable parent and that the children are safe in his care and enjoy a strong and secure relationship with him.
Ms E observed and expressed concern that the children were wholly aligned with their mother and were encouraged to view their father and his family in wholly negative terms. She had the benefit of observing the children with their father and commented upon the stark difference between what the children had said to her about their time with him and how they actually were in their engagement with him. Ms E was concerned that the inconsistency in their spoken account of that experience, against the very positive interaction she observed, made clear that the children were highly vulnerable to the further deterioration and loss of their relationship with the father and his family. These matters led Ms E to the conclusion that the children have been psychologically harmed and face an unacceptable risk of ongoing psychological harm if radical intervention did not occur.
Ms E’s recommendations about the future living arrangements for the children have been accepted by the parties and the independent children's lawyer.
It is agreed between the parties that the orders to be made by consent will provide, in summary:
(a)That the children will live with the father;
(b)That the father will have sole parental responsibility and shall make long-term decisions for the children following a consultative process involving the mother;
(c)That the mother will have limited, supervised day time with the children over a period of six months;
(d)During that six-month period, the mother will engage a psychologist or psychiatrist (who will have the benefit of Ms E's report), to hopefully work on aspects of her belief system relating to the father and his care of the children in addition to her responsibilities to the children; and
(e)In the future, that the mother's care of the children will progress to ultimately provide for care every second weekend, and for half of each school holiday period.
This is a complex and challenging matter, and I recognise the significant challenges for the mother, in particular, in coming to this resolution. I recognise, with respect, that the challenges the mother may face in the future may be substantial; however, in agreeing to the children being placed with the father, I accept that she is taking responsibility for her part in the difficult situation confronting these children. Her agreement to a process of therapeutic intervention is also a positive sign and reflects very well upon her.
I accept that the mother has a warm and loving relationship with the children. I accept Ms E's observations as to the strengths of that relationship, and the benefits the children will continue to derive from having a relationship with their mother. It is important that both parents work hard, and cooperatively, to ensure that the children have the best chance to continue their important relationships with each of them.
I accept that the father is capable of supporting the children's relationship with the mother. That is an important responsibility that he carries, and the children need him to discharge that responsibility fully and generously if they are to meet their full potential and have the best chance of robust psychological health as they mature.
I am required to make orders which are in the best interests of the children.
There was very clear evidence of real risk to the children of ongoing psychological harm, in the event their living arrangements were unchanged. I am satisfied that these orders are in the best interests of the children, and will promote their safety, including shielding them from the risk of psychological harm. I accept that these orders make it possible for the children to have a positive and important relationship with both of their parents. These orders will permit those important relationships to continue.
ISSUES IN NEED OF DETERMINATION
As to the final matters to be determined, I determine as follows.
Supervision service or services
While I accept the benefits to the children of having as much time with their mother as the precautions required in this matter may permit, I do not propose to make orders which allow for the engagement of two supervision services.
The children's interests are best met by them enjoying time with the mother with one supervision service only, in the hope that there may be less disruption and more consistency for them in that experience. I will make orders as proposed by the father and the independent children’s lawyer (proposed order 6), that provide for the mother to have time in that initial six-month period with an agreed supervision service, and failing agreement, with B Family Services.
Noting the submissions made today about B Family Services, in the event that it is possible to attend upon B Family Services to provide supervision on a weekly basis, then I am confident the parties will embrace that, given the position proposed by the father yesterday as to having weekly supervised time. In the event B Family Services cannot provide supervision more frequently than each fortnight, then unless the parties agree to a different arrangement in writing, that is the arrangement that will be in place for these children.
I note again that these orders are made with the usual proviso allowing the parties to agree on other matters from time to time that may better suit the children. I accept that the parties are capable of shifting their focus to what will be best for the children – who will undoubtedly experience challenges as a consequence of the changes to their living arrangements.
School holiday time
There was some disagreement about when the mother's holiday time with the children, particularly the long summer holiday period, should commence. It is agreed that the mother would not have holiday time with the children until the expiration of the six-month period of supervised time, during which, of course, the mother is to engage in therapeutic support.
I do not agree that the mother should have no additional time with the children over the impending long summer holiday period, commencing in December 2025. I do not accept that it will be in the best interests of the children for them to not spend additional time with the mother in that period.
I embrace the submissions made by the independent children's lawyer this morning with respect to the school holiday period at the end of this calendar year. I determine that, unless otherwise agreed in writing between the parties, the mother's time with the children in the long summer holiday period shall be extended, following the weekend care pattern then in place, such that she cares for the children for five nights on three occasions during the long summer holiday period this year.
It was submitted that such time would be from Friday through to Wednesday. I am content to make that order. Of course, if the parties agreed or preferred a different pattern of five nights, then that is something about which they can make their own arrangements.
I anticipate the mother may have commenced having full weekends of time, as provided in proposed order 8(b), by that time. Even if that has not occurred, I recognise that holiday time is different to school time and that there are real benefits for the children of enjoying more time with their mother during holidays, without the demands of school attendance and travel.
I otherwise intend to make orders in respect of the long summer holidays in the future as proposed by the father, that is, from December 2026, the mother's care of the children during the long summer holiday period will be on a week about basis, and from December 2027, the mother’s care of the children will be half of the long summer holiday period in a block.
Costs of the independent children’s lawyer
The other matter about which I was required to make a determination was with respect to the costs of the independent children's lawyer. Counsel for the independent children's lawyer made an application for costs, seeking an order that the parents pay the costs of the independent children’s lawyer, in equal shares, in the amount of $8,736.75 each. That order was opposed by each of the parents.
I heard submissions from counsel for the independent children’s lawyer in support of her application, and from counsel for each of the parents in opposition to the order being made. No objection was taken to the quantum of the costs claimed by the independent children’s lawyer.
I have regard to the important role of the independent children's lawyer in these proceedings, including their role in facilitating settlement discussions which have resulted in virtually all matters being agreed between the parties about the future care of the children. The work of the independent children’s lawyer has been of significant assistance to the court in this complex matter.
I have regard to s 117 of the Family Law Act 1975 (Cth) (“the Act”), and in particular, the provisions of subsections (2A) and (3). I am required to disregard the fact that the independent children’s lawyer is in receipt of a grant of legal aid, in accordance with s 117(5) of the Act.
I have limited evidence before me as to the financial circumstances of the parties.
The applicant father gave oral evidence during the proceedings that his personal income was in the vicinity of $67,000 per annum. He operates an agricultural enterprise on substantial land holdings, which he indicated he owned. I do not know what liabilities, if any, he may also carry in relation to that property or the operation of that enterprise.
The father also gave evidence that the farming enterprise meets the costs of his live-in au pair/ housekeeper and that his income is not required to meet that expense. He also deposed to living in a six-bedroom home on the farming property. I note that as a consequence of the orders shortly to be made in this matter, the four children of the parties will live with the father. I was asked to take into account that he will, thereafter, have greater financial responsibilities for the children, and I accept that.
I also take into account that he will no longer be required to pay child support for the children, given the new arrangements for their care. In due course, the mother will spend three nights per fortnight and half of the school holidays with the children. In her financial circumstances, it is unlikely that the father will be receiving child support from the mother given those care arrangements.
I was also referred to the father's cost notice filed in these proceedings. That costs notice filed on 28 March 2025 indicates that he has paid legal fees of over $106,000, with unpaid fees of $25,572, and funds in trust of $75,000. The estimate of his total fees for the final hearing over five days was $123,255 (including counsel's fees). That would require the father to find an additional $73,255, once the funds in trust are applied to his legal fees at the conclusion of the hearing.
The costs notice advises that the father has been paying his legal fees from his own earnings. This suggests that the father has access to resources beyond his indicated income of $67,000 per annum. I make that inference in these circumstances.
As to the mother's circumstances, her evidence was that she is in receipt of certain Commonwealth benefits, including benefits relating to her role in caring for the children. She is not employed and she rents her accommodation. As a consequence of the orders to be made, the children will no longer be in her primary care and her entitlement to Commonwealth benefits relating to the care of the children will also end. The mother has qualifications as an educator, but her work experience outside of the home is not recent.
The mother's cost notice was filed on 28 March 2025. That document indicates that the mother has paid to her current solicitors (and for counsel) $117,868 and had work in progress before the commencement of the hearing of another $13,000. The costs of the final hearing were estimated at an additional $103,265. I also note the mother has apparently incurred additional legal costs with other lawyers for earlier aspects of the proceedings in the amount of $548,010.
On that basis, the wife's total costs at the conclusion of the hearing are estimated to be $782,196. I was advised in submissions, and as stated in the costs notice, that the mother's costs are being met from litigation funding. I accept, on that basis, that the mother has an obligation to repay these amounts to the litigation funders.
I am also to have regard to s 117(4) of the Act. Neither parent is in receipt of legal aid.
I am satisfied that making an order for the mother to pay half the cost of the independent children’s lawyer will cause her hardship. The mother's future circumstances are uncertain. She will experience immediately significant changes to her circumstances, which will require her to engage with Services Australia with respect to her Commonwealth benefits. I accept that she may face a period of greater financial uncertainty. The obligation to pay litigation funders an amount which is close to $800,000, weighs heavily in favour of shielding the mother from a further financial burden.
The mother is also required to meet the costs of her engagement with a psychologist or psychiatrist over the next six months. I do not know what the cost of that process will be for the mother nor how she will meet any out-of-pocket costs for such. I take that future cost into account as an additional expense that she must now bear.
I am persuaded that an order that the mother contribute to the costs of the independent children’s lawyer would cause the mother financial hardship. I decline to make that order.
The father's counsel submitted that the father would now face greater responsibility for the care of the children and additional expenses as a consequence. I accept that submission. I also take into account that the father has agreed to meet the costs of the supervision service to be engaged, to facilitate the children's time with their mother over the next six months. I do not accept however, that an order that he pays some of the costs of the independent children’s lawyer, will cause him hardship. He clearly has financial resources at his disposal, as is evident from his costs notice and from his oral evidence in these proceedings.
His contribution of $8,736.75 towards the costs of the independent children’s lawyer is modest, in the scheme of the total costs he has committed to pay for his private legal representation and which is asserted will be paid from his own resources. That reassures me that he will not suffer hardship if he is required to pay this additional amount.
CONCLUSION
I propose to merge the matters agreed by the parties with those that I have determined this morning, such that the parties will have the benefit of a sealed order today.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Simpson. Associate:
Dated: 23 June 2025
0
0
1