Pisani and Rodgers

FAMILY COURT OF AUSTRALIA

PISANI & RODGERS

[2009] FamCA 346

FAMILY LAW – CHILDREN – Whether in the best interests of the children to further define periods of to be spent by them with the Father.
FAMILY LAW – COSTS – Sought by the I.C.L. – Whether a circumstance and relevant matters established to make the Order sought

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 68B, 117(2A)

APPLICANT:

Mr Pisani

RESPONDENT:

Ms Rodgers

INDEPENDENT CHILDREN’S LAWYER

Robb & Associates Solicitors

FILE NUMBER:

MLF

3306

2004

DATE DELIVERED:

30 April 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

28, 29 & 30 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

T Hodgson

COUNSEL FOR THE RESPONDENT:	M Gillies
SOLICITOR FOR THE RESPONDENT:	Legal Aid Commission of NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	K Reynolds
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	M Robb

Orders

That all previous parenting orders are discharged.
That the parties have equal shared parental responsibility for the children K born … February 1996, J born … September 1997 and T born … April 2003 (“the children”).
That the children live with the mother.
Subject to the orders below the father spend time with the children as follows:
a)From after school Thursday 30 April, 2009 to 5.30 pm on Saturday 2 May, 2009;
b)During school terms, every alternate week from after school on Wednesday to the commencement of school on Monday, with the first such occasion to occur on 6 May, 2009;
c)In the mid year school holidays for the first half of all school holidays that fall in a year ending in an odd number and for the 2^nd half of all school holidays ending in an even number. School holiday time shall commence after school on the last day of the school term. The mid way point shall be 5.00pm on the evening before the day mid way during the holidays. The 2^nd half of the holidays shall conclude at 5pm on the Saturday of the weekend immediately preceding the commencement of the school term;
d)For half of the Christmas school holiday period at times to be agreed between the parties, but in the absence of agreement, for the first half in even numbed years and for the second half in odd numbered years as follows:
i)When the father spends the first half of the Christmas school holiday period with the children his time with them will commence after school on the last day of the school term and shall conclude at 5:00pm on the evening before the day mid way during the holidays.
ii)When the father spends the second half of the Christmas school holiday period with the children his time with them will commence at 5:00pm on the evening before the day mid way during the holidays and shall conclude at 5:00pm on the Saturday before the commencement of the next school term.
iii)Notwithstanding any provision in this Order the children will spend time with the parent with whom they are not spending the first half of the Christmas school holiday period from 4:00pm on Christmas Day to 4:00pm on Boxing Day.
That notwithstanding the time the children spend with the father under Order 4, on the following occasions of special significance the children will spend time with the parties as follows:
a)If Father’s Day falls on a weekend that the children are not otherwise spending time with the father the children shall spend time with the father on Father’s Day from 9:30am to the commencement of school the following day;
b)If Mother’s Day falls on a weekend that the children are spending time with the father, the father’s time with the children shall conclude at 9:30am on Mother’s Day;
c)On the birthday of each child the children will spend time with the parties as follows:
i)If the birthday falls on a school day, the children will spend time with the parent with whom they would not otherwise be with after school from 3:15pm until 5:00pm.
ii)If the birthday falls on a weekend day, the children will spend time with the parent with whom they would not otherwise spend time that day from 9:30am to 12:30pm.
d)On the mother’s birthday the children will spend time with her from 3:15pm until 5:00pm if it is a school day and from 9:30am to 12:30pm if it is a weekend day.
e)On the father’s birthday the children will spend time with him from 3.15pm until 5.00pm if it is a school day on which they would not otherwise spend time with the father after school (with the mother to collect the children from the father’s residence at 5.00pm) and from 9.30am to 12.30pm if it is a weekend day on which they would not otherwise spend time with the father.
That for the purpose of the time the father spends with the children:
a)The father shall collect the children from school at the beginning of his time with them and return the children to school at the conclusion of his time with them provided his time with them commences or concludes on days when the children attend school;
b)The father shall arrange to collect the children at the commencement of the time that he shall spend with them and the mother shall arrange to collect the children at the conclusion of the time from the father’s residence, in the event that the father’s time commences on days the children do not attend school or the father’s time concludes on days the children do not attend school.
That the children shall have telephone communication with the mother and father as follows:
a)Telephone calls with either parent as they may request;
b)Telephone calls with the mother twice a week when the children spend holiday periods with the father each Tuesday and Friday between 6.00 pm and 7.00pm, with such calls to be facilitated by the father reminding and assisting the children to telephone the mother;
c)Telephone calls with the father twice a week when the children spend holiday periods with the mother, each Tuesday and Friday night between 6.00pm and 7.00pm, with such calls to be facilitated by the mother reminding and assisting the children to telephone the father;
d)Telephone calls with the mother every alternate Thursday and Sunday night when the children are spending time with the father in the school terms. Such calls are to be facilitated by the mother telephoning the father’s landline between 6.00pm and 7:00pm and the father is to ensure that the phone is answered in that period and that the children are available to speak to the mother;
e)Telephone calls with the father every alternate Thursday and Sunday night when the children are spending time with the mother in the school terms. Such calls are to be facilitated by the father telephoning the mother’s telephone number between 6.00pm and 7:00pm and the mother is to ensure that the phone is answered in that period and that the children are available to speak to the father.
That the mother shall as soon as practicable obtain a landline telephone and advise the father within seven (7) days thereafter of such number subject to the father paying the landline telephone rent for the mother forthwith and in advance of rent being due upon him being furnished with a copy of the appropriate telephone invoice or notice.
That the mother and father are to ensure that when the children are in their respective care each child attends school every school day and attends punctually unless the child is ill, injured or required to attend a medical appointment.
That in the event a child is not able to attend school for reasons of illness or injury while in either party’s care that party is to notify the other parent by telephone of this by no later than 10am on that day.
That the mother and father provide each other with 14 days written notice of their intention to take the children or any of them away on holidays, other than day trips, with such notice to include the address and telephone numbers of the place at which the children will be staying or may be contacted at during such holiday.
That each party is hereby restrained from making critical or derogatory remarks in relation to the other party, the other party’s partner or any member of the other party’s family in the presence and/or hearing of the children and each party is to do all things necessary to ensure that no third party makes critical or derogatory remarks about the other party, the other party’s partner or any member of the other party’s family in the presence and/or hearing of the children.
That the parties ensure that when the children are returned to the other parent or school at the conclusion of their time with the children they have with them all of the clothes and belongings they brought with them at the beginning of their time with them. In the event the children leave clothes or belongings with the either party, that party is to leave those things at the children’s school within 24 hours during term times or return those things to the other parties residence within 24 hours during school holiday periods.
The children’s time with the father is suspended:
a)In the event that the father is not available to look after the children for the majority of time that they are to be in his care;
b)During any period that the father is in custody;
c)During any period that a warrant for his arrest has been issued.
The father shall, as far as possible, notify the mother at least 14 days prior to his inability to spend time with the children as referred to in Order 14 herein.
That the father and the mother shall not discuss with or in the presence of the children or any one of them, matters arising out of or in relation to these proceedings and shall not allow the children or any one of them to read or be shown any documents or correspondence in relation to these proceedings or the implementation of contact between the Father and Mother and any other relevant person.
That each party authorise any school which the children attend to release such information concerning each child’s schooling or school related events to the other party, at their request and expense.
That the parties provide written notice of their current residential address, email address and a contact telephone number, both landline and mobile numbers and advise of any change in relation to either within seven (7) days of such change.
That the parties shall notify each other, in writing, of the name, address and telephone number of any medical practitioner to whom they take the children or any one of them and authorise such medical practitioner or other professional to release information to the party concerning the health or welfare of the children or any one of them.
That each party shall notify the other of any medical emergency, illness or medical condition concerning the children or any one of them as soon as possible after its occurrence.
Each party shall notify the other, in writing, of any medication that has been prescribed for any child as well as details of:
a)The condition for which it has been prescribed;
b)Copies of any directions given as to how the medication is to be applied or taken; and
c)The prescribing medical practitioner.
The process to be used for resolving disputes about the interpretation implementation or enforcement of these orders is as follows:
a)The father and the mother shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General;
b)The father and mother shall participate in family dispute resolution with the person authorised under Section 10G of the Family Law Act; and
c)Before an application is made to a Court for variation of these Orders to take account of the changing needs or circumstances of the child or the parties, each party is to take the step outlined in the preceding paragraph.
Each party shall ensure that the children attend all extra curricular activities, sporting events and fixtures and training for these events/ activities whilst the children are in their respective care.
Except for activities otherwise noted in these terms, neither party shall enrol the child/ children in any activity that is to take place during the children’s time with the other parent unless they have the express written consent of the other parent.
Either parent is at liberty to attend any extra curricular event, school occasion or sporting event that the children are participating in regardless of whether the children are in their care.
That the parties shall note the obligations created by the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
That the application of the mother for orders in terms of paragraph (b) and (c) on page 2 of Exhibit 8 is dismissed.
That the application of the father for an order in terms of paragraph 27 of Exhibit 8 is dismissed.
Liberty to apply to set aside, suspend or vary any or all of the parenting made this days on 3 days written notice being given.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.
That the application made for costs made by the Independent Children’s Lawyer is dismissed.

Notations:
A.Where these orders require one or other party to give each other notifications in writing the sending of an SMS message to the other parties' mobile telephone is sufficient.
B.It is agreed that the parties support J being enrolled in soccer and cricket. It is further agreed that the parties support T and K being involved in pony club events and equestrian competitions.
C.That in the event any of the children becomes ill at school and the mother or a person nominated by her is unable to collect them within 1 hour of being advised by the school of the child’s illness, the mother shall do all acts and things necessary to authorise the father to collect the children from school and the child shall remain with the father until collected by the mother.
D.The mother agrees to collect the children from the father’s residence at the conclusion of their time with him on 2 May, 2009.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLF 3306 of 2004

MR PISANI

Applicant

And

MS RODGERS

Respondent

REASONS FOR JUDGMENT

Introduction

The parties have been engaged in a trial of parenting issues before me which commenced on 28 April 2009. Their three children are K, born in February 1996; J, born in September 1997, and T, born in April 2003. The three children live with the mother and spend periods of time with their father on a regular basis in accordance with orders previously made by the trial Judge at the first trial on 30 June 2006.
Subsequently, and following the father’s appeal being allowed, orders were made by the Full Court pursuant to the slip rule on 6 April 2009 which reinstated the operation on an interim basis only of the orders to which I have referred.
Yesterday afternoon I was informed by counsel that agreement in principle had been reached between the parties. I provided an adjournment in order that that agreement might be documented. That was against a background of providing substantial periods for negotiations between the parties on the first day of the trial.
To the credit of the parties they have reached agreement in relation to many parenting issues as is reflected in Exhibit 7. I will make orders by consent in accordance with that exhibit.
However, there remained a number of issues upon which the parties could not agree. A document entitled “Proposed Minute of Disputed Issues” became Exhibit 8.
In accordance with procedure agreed upon by counsel and which I approved, I was requested to determine those disputed issues, having regard to the affidavit evidence before me, the oral evidence that I have received, being the evidence given by the father and cogent submissions made by counsel this morning including counsel for the independent children’s lawyer.
In view of the nature and extent of the disputed issues, I propose to provide truncated reasons, especially also against the background where other substantial parenting issues, dealing with such matters as equal shared parental responsibility, with whom the children should live and periods of time that the children should spend with the father, both during school term and school holidays, are the subject of the agreement to which I have earlier referred.

Historical background

The parties have had an extensive and at times intense history of litigation between them in relation to parenting issues. The proceedings between them commenced in 2004. There were a number of court appearances in this Court as well as interim orders having been made.
Ultimately, a substantive trial was conducted by Carter J in Albury over a period of six days in 2006 culminating in Reasons for Judgment being delivered and orders made on 30 June 2006.
The substance of those orders provided that the parties have responsibility for the long term care, welfare and development of the children; that the children reside with the mother and that there be a regime of periods of time that they spend with the father during the week in school term, as well as for half of school holidays and on other special public holidays and other events. In addition, a non-denigration order was made and further directions also made in relation to the issue of costs.
The terminology used in the orders was, of course, appropriate at that time, given that those orders were made prior to the commencement of the amendments to the Family Law Act on 1 July 2006.
The father appealed in respect of certain of the parenting orders made on 30 June 2006. His appeal was allowed on 17 March 2008, and the parenting proceedings were remitted for a new trial. Subsequently, the orders of the Full Court were amended pursuant to the slip rule to which I have referred.

Issues for determination

I propose to now deal with each of the issues that the parties have asked me to determine as described in Exhibit 8. The first issue is that numbered 5(e). The essence of that issue is that the father contends that it is in the children’s best interests for them to spend overnight with him should his birthday fall on a school day.
Paragraph 5(d) of Exhibit 7 provides that the children spend time with the mother on her birthday for a period of slightly less than two hours on a school day and for three hours as noted on a weekend day. Submissions made on the father’s behalf are that it is in their best interest for the children to spend overnight on the birthday of not only the father, but also the mother should it be a school day, rather than the shorter period of time as inferentially they will enjoy and further relationship between themselves and the parent concerned should they spend overnight with them. It will provide a more extended period of time obviously and inferentially might add to the enjoyment of the occasion.
The mother opposes the order as sought. Her position is that a school day requires a compromise between spending an appropriate period of time with the parent involved, but in circumstances that do not disrupt the routine and stability of the school week which would necessarily occur should be there an overnight period with one parent or the other, depending on whether the birthday concerned clashes with the period that the children might be spending with the other parent. The independent children’s lawyer supports the mother's position.

On the evidence before me, it is clear that the two youngest children have been progressing satisfactorily at school. The eldest child has been demonstrating some problems at school. The father acknowledged that that was the position during the course of his oral evidence. I infer that it is in the children’s best interest to maintain stability and routine during the school week, allowing for the need for them to spend substantial periods of time with each of the parents.
As I have previously observed, the parents have reached agreement on the regime of periods of time that the children spend with the father reaching that agreement, as well as on other matters, obviously took a substantial effort on their part because it required them to try and put behind them the years of litigation that have taken place between them.
I am making those remarks in order to show that I appreciate that the parents have now progressed a long way compared to the positions of opposition that they held for some years. Nonetheless, this particular issue should not be looked at as reward, but rather as with every other issue, whether it is in the best interests of the children on the evidence before me to make one order or the other.
I am inclined to take a more conservative approach to this issue, and that is the period of time to be spent by the father in the circumstances to which I have referred should be the same period as that which will be provided for the mother in accordance with paragraph 5(d) of the proposed consent orders concluded in Exhibit 7. The reasons are those given in paragraph 16.
Consequently, it will mean that the order that I will make will be in terms of paragraph 5(e) on the second page of Exhibit 8.
The next issue relates to whether or not certain additional paragraphs be added to paragraph 14 of Exhibit 7. Those additional paragraphs are described on the second page of Exhibit 8. Essentially, they provide for a suspension of the time that the children may spend with the father in the circumstances described in paragraph 14(b) and (c) of Exhibit 8.
Paragraphs (b) and (c) are contended, on behalf of the mother, to be in the children’s best interests. The evidence relied upon in support of that position is not a matter of contention in part, that is, that the father is facing a committal proceeding in relation to aiding and abetting with respect to drug charges which other accused are facing. The committal proceeding, on information currently available, is due to commence in February 2010 in the appropriate Magistrates Court.
It is submitted that I should infer that the father is likely to be more preoccupied than currently in the period immediately prior to the commencement of those committal proceedings and that factor, given the emotional issues with which he has had to contend since the charges were laid in August 2008, particularly so far as the relationship with his partner is concerned, may mean that he will be unable to fully devote himself to the care of the children, not merely physically but emotionally. Further, that it is not in their best interests to be in his household subjected to that type of atmosphere for two weeks prior to a committal hearing or any subsequent trial that might take place.
That approach is supported by the independent children’s lawyer although during the course of her submissions she appeared to submit that perhaps a lesser period of time than two weeks would be appropriate.
The father submits, through his counsel, that he is unemployed and that factor combined with the continuing time that he will have available for the children prior to the committal proceedings means that he can devote himself to them physically and emotionally, notwithstanding that a committal hearing may be about to commence.
It addition, it was submitted that he has had to and will continue to be occupied, no doubt, with the considerations that are involved in the committal proceedings between now and the commencement of the committal. Yet, no order is sought to limit or prevent the children spending any period of time with him between now and the commencement of the committal proceedings other than paragraph 14(b) of the Exhibit 8.
The practicalities, so far as the proposed consent orders are concerned, are that the children will spend the second half of the Christmas/January school holiday period in the care of the father, that is in the second half of January 2010. The time between the conclusion of that period and the commencement of the committal proceedings will necessarily be very short.
Paragraph 4(c) provides that the second half school holiday periods will conclude at the commencement of the first school day of the following term. That may well mean that the first school day is the day that the father is required to be at the committal proceedings, or if not, then the first school day is likely to be very close to the commencement of those proceedings.
I, unfortunately, do not have the benefit of expert evidence on this issue. For understandable reasons, the family consultants were no longer required to be available for cross-examination given the agreement in principle which had reached yesterday afternoon. A matter that concerns me is seeking to evaluate on the one hand the possible upsetting effects for the three children should the father’s household be preoccupied with the forthcoming committal proceedings, especially the father and his partner, as against some possible feelings of rejection or insecurity which the children might experience should the father be prohibited from having them in his care for a period of two weeks or perhaps even a lesser period prior to the commitment commencing.
The evidence which is relevant is that there has been the understandable emotional pressure which the father has been experiencing since the charges were laid. The issues that have engendered from time to time, so far as the father and his partner are concerned, plus the sensationalised media reporting in relation to the criminal charges which are pending, are likely to continue once the committal proceedings commence.
No submission was made to the contrary of that approach. There is no issue that the children love the father as well as the mother. It is clear from Exhibit 5 that the children miss periods of time that they should have spent with the father but haven’t, due to him not making himself available for those purposes.
It seems to me on balance that whilst the father’s household may be more emotionally charged in days leading up to the commencement of the committal proceedings, it may be more advantageous for the children to be in his care so that they can not only continue their relationship with him in a practical sense, but also have the benefit and the security of his love and attention.
I will make an order that varies the proposed order 4(c) in that it will provide for the second half of the Christmas/January school holidays concluding in January 2010 to conclude at 5.00pm on the Saturday of the last weekend prior to the commencement of the first school term in 2010. That will ensure that the children continue to have the benefit of the periods of time that they will spend with the father in the second half of that school holiday period and at the same time will enable them to be returned to the mother’s household to be settled and prepared for the new school term that will give them the opportunity to be focussed on that, rather than the effects of the committal proceedings likely to be discussed in the father’s household on the day before or shortly before he is required to travel for the committal proceedings.
An issue was raised in terms of any subsequent criminal trial in which the father might be an accused or, in relation to any other criminal proceedings arising out of the pending charges. It seems to me that the submission made by counsel for the father should be accepted, and that is that paragraph 14(a) of Exhibit 7 will cover the situation.
I should add that I propose to make a further order providing for liberty to apply to discharge, suspend or vary all or any of the parenting orders that I will make upon three days written notice being given. That will protect the position of both the father and the mother in terms of the need to seek further orders in the children’s best interest. It should not be regarded as an invitation to immediately commence fresh proceedings. In that regard, I note that in terms of any future dispute between the parties, they have agreed that at least so far as major long term issues are concerned, that the procedures described in paragraphs 21 and 22 of Exhibit 7 will take affect.
An issue also arises in terms of the proposed paragraph 14(c). It was subsequently amended to refer to an overnight period, at least so far as the independent children’s lawyer is concerned. I do not accept the position taken by the mother in relation to this matter and in doing so I do not doubt her sincerity or concern. However, currently the father is required to report twice daily as a condition of bail. He is unemployed. There is no evidence of him having any business interests outside the area which might require his absence from that area from time to time.
So far as legal representation is concerned for the pending criminal charges, the father’s evidence, which I accept, is that whilst he does have a solicitor he cannot afford legal representation for the period of the committal proceedings.
Consequently, on the evidence before me it is extremely unlikely that he will need to spend substantial periods of time from the area. In any event, his movements are circumscribed due to the bail conditions to which I have referred. As a result I will not make the order as sought in paragraph 14(c) of Exhibit 8.
Paragraph 26 of Exhibit 8, raises an issue in relation to whether or not it is in the children’s best interests that the mother have a landline telephone given alleged problems so far as telephonic contact with the children by the father are concerned by use of mobile telephone service. Counsel for the mother informed me that the mother’s difficulty with a landline is purely a financial one and especially being able to afford to pay the landline rental required. Counsel inform me that it’s currently at the rate of about $40.00 a month.
Counsel for the father obtained further instructions. Counsel informed me that the father will pay the rent. I will make an order accordingly on the basis that he pays the rent in advance forthwith upon being furnished with the appropriate written particulars of the rent, including the telephone service invoice or notice in that regard. The father should understand that should he fail to comply with such an order, then the landline will no longer be available.
The final issue is one raised by the father in terms of paragraph 27 of Exhibit 8. Paragraph 27 seeks an order compelling the parties to do all things necessary to permit the children to take part of their first holy communion and be confirmed in the Roman Catholic faith. Notwithstanding that it is proposed that there be an order for equal shared parental responsibility, the father seeks that order which would have the effect of flying in the face of equal shared parental responsibility, quite apart from the presumption in that regard contained in section 61DA.
Counsel for the father relies upon the best interests ground in section 61DA(4). He referred me to the only evidence of relevance. It is contained in paragraph 46 of the father’s affidavit sworn 13 September 2005. In that affidavit it is alleged that the wife refused to allow the eldest child to take part in her first holy communion and had informed her school that the children do not have a religion.
Subsequently, counsel informed me, without opposition, that subpoena material demonstrates that prior to the separation of the parties in 2005 the religion indicated on a relevant school enrolment form was catholic and subsequent to separation, the religion indicated and the material indicated for the purpose of denoting religion was either no religion or blank. I am not quite sure which of those really applied and then the further form on a subsequent occasion indicated the religion as being “Anglican/Catholic”.
The counsel for the father submitted that this was a matter of “crucial importance” to the father. Without for a moment doubting the father’s sincerity, the fact remains that one might have expected a matter of such importance to be the subject of his updating affidavit sworn on 28 April 2009. Yet no further evidence was given.
As I have been at pains to point out, I can only make a parenting order if it is in the best interests of the child to do so. However, if the father seeks a mandatory injunction then section 68B of the Act applies.
Leaving aside for the moment my doubts as to whether I even have the power to make such an order given the constitutional right of freedom of religion, the evidence such as it is is sparse and does not lead me to conclude that it is in the children’s best interest that their parents be compelled to, in effect, compel them to participate in the religious procedures referred to in paragraph 27 of Exhibit 8.
The parents apparently have no objection to the children attending the church of the faith of their particular parent when in his or her care. It is submitted on behalf of the father that it is likely that this issue will be agitated again. I note that a procedure for dealing with disputes is set out by agreement in paragraphs 21 and 22 of Exhibit 7. Should, unfortunately, a religious issue ironically lead to parental conflict which cannot be in the child’s best interest then, hopefully the parents will seek some informal guidance on a joint basis from the religious leaders of their church.
If that happens, then a broader, positive and more constructive view may be expressed which could possibly lead them to reach agreement. Regrettably, I am unable to advance this issue any further. For the reasons that I have expressed, I am not in a position to be satisfied on the evidence before me that section 61DA(4) has been established. Consequently, the order as sought by the father should be made.

Application for costs

An oral application has been made by the independent children’s lawyer for payment of costs assessed at $8,244.00. I was informed by counsel that the mother’s prospective commitment has been waived given that she is in receipt of a grant of legal aid. The father is not in receipt of such a grant. Consequently, an order is sought that he be liable for half of such costs.
I propose to dismiss the application for the following reasons.
I am satisfied that a circumstance has been established to enable me to consider whether there should be a costs order. The circumstance is that the independent children’s lawyer fulfils a role in the interests of the parties and their children and to that extent carries out a public interest for their benefit as well as that of the Court.
However, it is well established that a court generally should refrain from making an order which is unlikely to be able to be enforced. Pursuant to subsection (2A) of section 117, the only relevant matters appear to be the following. That the parties reached agreement whilst the trial has been part heard. The agreement reached is one reflected in the orders that I have made by consent. The issues remaining in dispute between them were issues which did require consideration and had varying degrees of merit.
The only evidence of the father’s financial position is that he is unemployed, receiving social security benefits and in rental accommodation. I have no evidence of any significant assets that he may have. He shares his rented accommodation with his partner. They have two young children. His partner also receives social security benefits.
In those circumstances, he clearly does not have the financial capacity to meet the order as sought. There is no evidence to suggest that his financial position is likely to significantly improve in the foreseeable future. Any order for costs that I might make against the father is unlikely to be able to be enforced.

Conclusion

Consequently, the order that I make is that the application for costs made by the independent children's lawyer is dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Date: 6 May 2009

[2009] FamCA 346

30 April 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Costs

Procedural Fairness