Stephens and Robins

[2009] FamCA 1006

FAMILY COURT OF AUSTRALIA

STEPHENS & ROBINS [2009] FamCA 1006

FAMILY LAW - COSTS - Application by the Independent Children’s Lawyer for costs - Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Stephens

RESPONDENT: Mr Robins

INDEPENDENT CHILDREN’S LAWYER: Ms Blundell

FILE NUMBER: NCC 578 of 2007

DATE DELIVERED: 22 October 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 22 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davies

SOLICITOR FOR THE APPLICANT: Chris Kogias Solicitors

COUNSEL FOR THE RESPONDENT: Mr Kelly

SOLICITOR FOR THE RESPONDENT: Riviere Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

Orders

1. All former parenting orders are discharged.

2. With the consent of the parties and the Independent Children’s Lawyer, it is ordered in accordance with the document entitled “Terms of Settlement” signed by the parties and/or their legal representatives on 22 October 2009, which is marked Exhibit A and placed with the Court file:

   2.1The parents have equal shared parental responsibility for … born … February 2005 (“the child”).

   2.2The child lives with the mother.

   2.3The parties agree that the child will henceforth be referred to and represented in all documentation and correspondence as … Stephens-Robins. 

   2.4The child live with the father as follows:

   a.         During School terms:

   i.     From 9am each Wednesday until 9am or the commencement of preschool/school each Friday;

   ii.Each alternate Sunday from 9am until 9am or the commencement of preschool/school on Monday commencing on the first Sunday of school term.

   b.On … August (T’s birthday) each year from 3.30pm or the conclusion of pre-school /school on that day until 7.00pm if a school day and from 9:00am to 6.00pm if a weekend day.

   c.On … November (The father’s birthday) each year from 3.30pm or the conclusion of pre-school /school on that day until 7.00pm if a school day and from 12.00 noon to 6.00pm if a weekend day.

   d.On the weekend that contains Father’s Day from 5.00pm on the day preceding Father’s Day until 5.00pm on Father’s Day.

   e.For the first half of the school holidays at the end of Terms 1, 2 and 3 from 9am on the first Sunday morning until 9am on the middle Sunday morning.

   f.During Christmas school holidays on a week about basis commencing from 3.00pm or the conclusion of preschool/school on the last day of Term 4 until 9.00am on the immediately following Friday.

   2.5The child’s period of living with the parents is suspended from 3.00pm Christmas Eve until 11.00am Boxing Day each year and the child is to spend time with each of the parents as follows:

   i.With the father from 3.00pm Christmas Eve until 1.00pm Christmas Day in odd numbered years and from 1.00pm Christmas Day until 11.00am Boxing Day in even numbered years.

   ii.With the mother from 3.00pm Christmas Eve until 1.00pm Christmas Day in even numbered years and from 1.00pm Christmas Day until 11.00am Boxing Day in odd numbered years.

   2.6If the child is spending time with the father pursuant to these orders on the last weekend of the Christmas school holidays, then that time is suspended and the child shall spend that time with the mother from 9.00am on the last Saturday of the Christmas school holidays until the commencement of Term 1 of the new school year.

   2.7The child’s period of living with the parents is suspended from 3.00pm or the conclusion of preschool/school the evening before Good Friday until 6.00pm Easter Monday each year and the child is to spend time with each of the parents as follows:

   i.With the father from 3.00pm or the conclusion of preschool/school on the day before Good Friday until 3.00pm Easter Saturday in even numbered years and from 3.00pm Easter Saturday until 6.00pm Easter Monday in odd numbered years.

   ii.With the mother from 3.00pm or the conclusion of preschool/school on the day before Good Friday until 3.00pm Easter Saturday in odd numbered years and from 3.00pm Easter Saturday until 6.00pm Easter Monday in even numbered years.

   2.8The parent who is not living with the child on … February each year (the child’s birthday) will spend time with the child each year from 3.30pm or the conclusion of pre-school /school on that day until 6.00pm if a school day and from 12.00 noon to 6.00pm if a weekend day. The other parent’s time will be suspended for this period.

   2.9If the child is not living with the mother on … January each year (the mother’s birthday) then the time the child is spending with the father on that day is suspended from 3.30pm or the conclusion of pre-school /school on that day until 6.00pm on that day if a school day and from 12.00 noon to 6.00pm if a weekend day and the child shall spend that time with the mother.

   2.10If the child is not living with the mother on … May each year (the children D & R’s birthday) then the time the child is spending with the father on that day is suspended from 3.30pm or the conclusion of pre-school /school on that day until 6.00pm on that day if a school day and from 12.00 noon to 6.00pm if a weekend day and the child shall spend that time with the mother.

   2.11If the child is not living with the mother on the weekend that contains Mother’s Day then the time the child spends with the father is suspended from 5.00pm on the day preceding Mother’s Day until 5.00pm on Mother’s Day and the child shall spend that time with the mother.

   2.12For the purposes of implementing these Orders, if the changeover is not scheduled to occur at a pre-school or school then, unless the parties otherwise agree, the changeovers shall occur at McDonalds Family Restaurant at V with the party with whom the child is living or spending time delivering the child to that location at the designated time and the other parent collecting the child at the designated times.

   2.13When the child is with the mother or the father, the other parent is permitted to communicate with the child via telephone each second day at a time agreed to between the parties or failing agreement between the hours of 6.00pm and 7.00pm.

   2.14Each party is to contact the other as soon as reasonably practicable upon the child being admitted to a hospital or receiving specialist medical attention while the child is living with them.

   2.15Each party is at liberty to obtain all relevant medical records and consult the child’s medical practitioners to obtain any information they require and these orders are sufficient authority for that purpose.

   2.16Each party is at liberty to attend the child’s pre-school or school and pre-school or school functions and obtain all details from the child’s pre-school or school including reports, school photos and these orders are sufficient authority for that purpose.

   2.17Within seven days of the date of these orders each party is to provide the other with their residential address, landline and mobile telephone number and keep the other advised of any change within seven days of such change.

3. The oral application for costs made by the Independent Children’s Lawyer against both parties is dismissed.

4. The hearing of this matter, commencing on Monday 14 December 2009, is vacated.

5. Any and all outstanding applications are dismissed.

6. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

7. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

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

NOTATIONS

A.The parties and the Independent Children’s Lawyer have submitted, pursuant to Rule 10.15A(2)(a) of the Family Law Rules, that no allegations of child sexual or other physical abuse have been made in these proceedings.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 578  of 2007

MS STEPHENS

Applicant

And

MR ROBINS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

1. These parenting proceedings are shortly to be concluded on a final basis by the making of parenting orders, which have been agreed between the parties and the Independent Children’s Lawyer.  As is conventional, the Independent Children’s Lawyer has made an application for costs against both the applicant mother and respondent father.

2. The application for costs as against the applicant mother is dismissed. The reason for that is that I am told, without challenge, the mother is in receipt of a grant of legal aid in respect of these proceedings. In those circumstances, the application for costs must be dismissed in accordance with s 117(4)(a) of the Family Law Act 1975 (“the Act”).

3. As regards the respondent father, he is not the recipient of a grant of legal aid, but his counsel has made submissions from the bar table about his financial circumstances.  Those submissions permit only one rational inference – that being that the father’s financial circumstances are parlous.  He has a modest income and very extensive liabilities.  The submissions about the father’s financial circumstances are not the subject of contest by the Independent Children’s Lawyer.

4. I find on the basis of the submissions made that the father would suffer financial hardship if he had to bear a proportion of the costs of the Independent Children’s Lawyer. Because of that finding, s 117(4)(b) of the Act mandates dismissal of the costs application insofar as it relates to the respondent father.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  22 October 2009